Burton and Minister for Home Affairs (Migration)

Burton and Minister for Home Affairs (Migration) [2018] AATA 1313 (16 May 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0901
Re:Lewis Burton
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:16 May 2018
Place:Sydney

The reviewable decision made on 20 February 2018, being the decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of Mr Burton’s Class BB Subclass 155 Five Year Resident Return visa, is set aside.
In substitution, the decision to cancel Mr Burton’s Class BB Subclass 155 Year Resident Return visa, made on 22 September 2017, is revoked.
..................[SGD]......................................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – five year resident return visa – mandatory cancellation – revocation – failure to past the character test – Ministerial Direction 65 – serious criminal convictions – Applicant’s responsibility and remorse – risk of reoffending – time in prison and immigration detention – future plans – protection of the Australian community – nature and seriousness of conduct to date – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed from Australia – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Candemir v Minister for Immigration and Border Protection (Migration) [2017] AATA 531
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzono v Minister for Immigration and Border Protection [2017] FCAFC 66
Uelese v Minister for Immigration and Border Protection [2016] FCA 296; 348 FCR 296
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA
REASONS FOR DECISION
Senior Member Linda Kirk
16 May 2018
BACKGROUND

Mr Lewis Burton (the Applicant) was born in the United Kingdom (UK) on 10 December 1978. He first arrived in Australia with his parents and brother on 21 September 1981 at the age of 2 years. Prior to its cancellation, the Applicant held a Class BB Subclass 155 Five Year Resident Return visa.
The Applicant’s family members in Australia include a younger brother and a sister who were born in Australia, both of whom are Australian citizens and reside in Western Australia. His brother was killed in 1992, and his father and mother tragically died in 2010 and 2011 respectively. His fiancée is an Australian citizen and they have a daughter born on 18 January 2018.
The Applicant has a lengthy criminal history, which is detailed below. Following his conviction for armed robbery in 2002 the Applicant was sent a notice of intention to cancel his visa on 24 May 2002. His visa was not cancelled but he was given a warning “that any further criminal conviction will lead to reconsideration of the cancellation of your visa” and that “[d]isregard of this warning will weigh heavily against you.” Following his second conviction for armed robbery the Applicant was sent a second notice of intention to consider cancellation of his visa on 27 October 2010. His visa was not cancelled however he was given a warning in similar terms to the first.
On 17 September 2015 the Applicant was convicted in the Downing Centre District Court of New South Wales of two counts Robbery with offensive weapon and he was sentenced to five years imprisonment.
On 22 September 2017, the Department of Immigration and Border Protection (the Department) issued the Applicant with a Notice of Visa Cancellation (the Mandatory Visa Cancellation Decision) under s 501(3A) of the Migration Act 1958 (Cth) (the Act).

On this date the Applicant was serving a sentence of full-time imprisonment at Bathurst Correctional Centre in New South Wales.
On 25 October 2017 the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision, and made representations to the Minister in support of his revocation request. On 27 November 2017 and 23 January 2017 the Applicant was provided with further information which may have been taken into account by the delegate and invited to comment.
On 21 February 2018 a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under section 501CA(4) of the Act and the applicant was notified of the decision on 21 February 2018.
The same day, on 21 February 2018, the Applicant lodged an application with the Administrative Appeals Tribunal (the Tribunal) seeking a review of this decision.
The Applicant is currently detained at Villawood Immigration Detention Centre (VIDC).
The matter was heard in Sydney on 30 April and 1 May 2018. The Applicant attended the hearing in person and was unrepresented.
THE RELEVANT LEGISLATION
Section 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(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)    …; 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.
Subsection 501(6)(a) relevantly provides that a person does not pass the character test if the person has a substantial criminal record. Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Subsection 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: s 501CA(1).
Subsection 501CA(4) confers on the Minister the discretion to revoke the original cancellation decision under s 501(3A), termed the original decision. Section 501CA(4) provides:
(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.
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 65
When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501CA, Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).
The Direction sets out the Government’s policy on visa cancellations and contains a number of introductory statements, including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in Australia.
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[1]
[1] Direction No. 65 at para 6.1(1).
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The latter set the framework within which the individual considerations set out in Parts A, B and C of the Direction are set.
The first paragraph of the General Guidance provides:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The following Principles are set out in paragraph 6.3:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing consideration may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(c)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(d)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[2] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa Applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
[2] Direction No. 65 at para 8(1).
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include Primary considerations and Other considerations. The Primary considerations are:
(e)Protection of the Australian community from criminal and other serious conduct;
(f)The best interests of minor children in Australia affected by the decision; and
(g)Expectations of the Australian community.
Other considerations are:
(h)International non-refoulement obligations
(i)Strength, nature and duration of ties [to Australia];
(j)Impact on Australian business interests;
(k)Impact on victims
(l)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[3] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary consideration may outweigh other primary considerations.[4]
[3] Direction No. 65 at para 8(2).
[4] Direction No. 65 at paras 8(4) and 8(5).
THE ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
It is not in dispute that the Applicant does not pass the character test in subparagraph (b)(i) of the subsection. It is therefore necessary to decide whether in accordance with subparagraph (b)(ii) of the subsection “there is another reason why the original decision should be revoked.”[5]
[5] Marzono v Minister for Immigration and Border Protection [2017] FCAFC 66 at [31].
Subsection 501CA(4)(b)(ii) has been interpreted by North ACJ in Gaspar v Minister for Immigration and Border Protection:[6]
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …[7]
[6] [2016] FCA 1166
[7] Ibid, at [38]
Therefore, the sole issue before the Tribunal is whether there is another reason, pursuant to subsection 501CA(4)(b)(ii), why the Mandatory Visa Cancellation Decision should be revoked. This requires consideration of any mitigating or extenuating factors favouring the Applicant which might militate against the cancellation of his visa.
THE EVIDENCE BEFORE THE TRIBUNAL
Criminal history
A National Police Certificate dated 7 December 2017 issued in respect of the Applicant shows that he has been convicted of a number of offences in Australia. In his representations to the Department and the Tribunal the Applicant did not dispute the charges and convictions in the National Police Certificate regarding his criminal convictions and sentences, or that he does not satisfy the character test.
The Applicant first commenced criminal offending in 1996. His offences range from relatively minor driving and drug offences and assault to more serious offences involving violence, most notably three convictions for armed robbery.
Driving offences
The Applicant was convicted of the offence of drink-driving on 26 February 1999, and his licence was disqualified for seven months (GD p 23). In January 2000 he was again convicted of drink-driving and his driver’s licence was cancelled and he was disqualified from driving for nine months (GD p 23). The Applicant continued to drive while under the influence, while his licence was suspended or he while he was disqualified, and was convicted of offences on the following dates and was fined and sentenced as follows
(GD pp 22 to 23):
·15 February 2001 (fined $250)
·16 February 2001 (fined $80)
·22 January 2002 (fined $500 and licence cancelled for 12 months)
·8 January 2003 (fined $1,200, sentenced to 3 months imprisonment, licence disqualified for 18 months)
·1 August 2005 (fined $400, licence disqualified for 3 months)
·2 December 2005 (fined $700, licence cancelled for 6 months)
·26 September 2006 (fined $250).
On 24 September 2008, the Applicant was convicted of driving an unroadworthy vehicle with a false number plate, while talking on his mobile phone, and while his licence was suspended. He was fined $2,000 and his licence disqualified for nine months (GD p 22). The Applicant was questioned about these offences at the Tribunal hearing. He said he could not recall the incident exactly as he was under the influence, nor could he recall being present when the plates on the vehicle were changed. He agreed that he should not have been driving and that his actions were irresponsible.
In June 2013 the Applicant was convicted of two counts of Unauthorised driving by learner drivers and fined $400 (GD p 22). When questioned about this offence at the hearing, the Applicant said he did not recall the incidents that led to these charges.
Stealing offences
The Applicant was convicted on 15 February 2001 with one count each of stealing, receiving and fraud and fined $1,200 (GD p 23).
The Applicant’s first armed robbery offences occurred on 10 July 2001 and 5, 9 and

10 August 2001 (GD p 33) when he robbed three service stations and a video store. During these robberies he used a chair, a kitchen knife and a meat cleaver to threaten the victims rather than inflict actual harm (GD p 34). On 22 January 2002, the Applicant was convicted in the Supreme Court of Western Australia of four counts of Robbery whilst armed and was sentenced to three years imprisonment to be served concurrently. In his sentencing remarks, Judge Scott noted that the robberies were carried out on ‘soft targets’ which were staffed by lone attendants.
On 26 July 2009, the Applicant committed two further armed robbery offences, by pretending to be armed and obtaining money from two young women (GD p 48).

On 5 November 2009 he was convicted in the Supreme Court of Western Australia of one count of Armed robbery and one count Stealing and was sentenced to imprisonment for four and two years respectively (GD p 22). In his sentencing remarks Judge McKechnie noted that the Applicant ‘terrorised’ one of the victims causing her ‘devastation’.
The Applicant’s most recent armed robbery offences occurred on 12 October 2014 in New South Wales. According to the sentencing remarks of Judge Berman, the Applicant entered a bottle shop, and threatened the attendant with a broken bottle of beer.

He grabbed the attendant by the collar and said ‘open the till or I’ll shove this in your face’ (GD p 51). The Applicant stole $310 and alcohol (GD pp 51 to 52). Later that night he used a broken bottle to demand and take money from a taxi driver (GD p 52). He was convicted in the District Court of New South Wales with two counts of Robbery armed with an offensive weapon and sentenced to five years aggregate imprisonment on

17 September 2015 (GD p 21).
The Applicant was charged with two counts of shoplifting on 6 October 2015 and sentenced to three months imprisonment for each offence (GD p 21).
Assault offences
In December 1996, the Applicant attended the Court of Petty Sessions in Western Australia, and had two charges of assault occasioning actual bodily harm dismissed

(GD p 211).

On 29 May 2017, as part of his participation in the Compulsory Drug Treatment Correctional Centre (CDTCC) Program, the Applicant was asked about obtaining two prescriptions for the same medication within a short period of time. He became aggressive, verbally abusive and stood up to leave the room. A Custodial Officer gestured for him to remain in the room. The Applicant then became angry and ‘forcibly pushed the upper body of the Custodial Officer with both palms of his hands, causing the Custodial Officer to fall against a table located close by’ (see GD p 96). On 8 August 2017, the Applicant was convicted of Common assault and sentenced to four months imprisonment.
The Applicant was questioned about this offence during the Tribunal hearing. He said that he considered the questions about his medication to be an accusation that he had been ‘doctor shopping’ which was untrue. He got angry, got up to leave and he pushed the Officer out of the way as he was leaving the room. He said he did not intend to cause the Officer harm and that he apologised to him after the event. Unfortunately this incident led to him being excluded from the CDTCC Program and he was unable to complete the Program.
Drug possession and supply offences
The Applicant was convicted of drug possession offences in Western Australia and New South Wales on 5 November 2009, 13 June 2013 and 10 June 2014 and was sentenced to pay fines of $100, $300 and $450 respectively.
On 27 June 2014 the Applicant was convicted in the NSW Central Local Court of four counts of drug possession and one count of drug supply, for which he was sentenced to three months imprisonment (GD p 21).
The Applicant was questioned about these drug offences at the hearing. He told the Tribunal that he came to live in Sydney in 2013 but that he was “too much of a mess” to work. He was asked about incidents in March and April 2014 when he was caught in possession of ice, marijuana and heroin. He said that the marijuana was not for him but for the person he lived with and that the ice and heroin were for personal use. He told the Tribunal that in March 2014 he was taken to St Vincent’s hospital for a heroin overdose.
Applicant’s responsibility and remorse for criminal behaviour
The Applicant told the Tribunal he was a drug addict for 20 years and “it was hell”. In his “Personal Circumstances Form” attached to his request for revocation dated 28 August 2017 [GD pp 59 to 71] the Applicant stated:
I’m not one to make excuses for my mistakes and am truly sorry and deeply embarrassed about my antisocial behaviour.
He further stated in the section titled ‘Additional Details” [GD p 71]:
I am truly sorry for the criminal conduct that has taken place in my life. My struggle with addiction was hell which lead me to my criminal behaviour that I am ashamed of and deeply embarrassed about. I now know after participating in the drug compulsory treatment programme and getting to the roots of my problems, ice was a substance I was self-medicating on. I understand that my actions have had a ripple effect on a lot of people and I couldn’t be sorry enough … I did offer and want to apologise to the victims but wasn’t able to my head is so dis-functional (sic) on that drug but it was numming (sic) how I felt inside and all along counsilling (sic) is what I really needed and I probably always will continue to get treatment …
He told the Tribunal that his early years had been very traumatic: he was sexually assaulted when he was five years old, and his older brother was killed by a drunk driver in 1992. In 2010 his father died in a tragic accident and his mother committed suicide in 2011. These events led him to self medicate with drugs, and this led to his anti-social and criminal behaviour.
Applicant’s involvement in Compulsory Drug Treatment Program
The Applicant participated in the Compulsory Drug Treatment Correctional Centre (CDTCC) program consisting of three stages, which are detailed in the CDTCC report dated 19 October 2017 in relation to the Applicant [GD pp 95 to 101]. He commenced the Program on 12 April 2016, progressed to Stage 2 on 8 September 2016 and to Stage 3 on 9 March 2017.
The CDTCC report states that the Applicant engaged with staff in an “enthusiastic, polite and cooperative manner” and “conducted himself in manner that the community in general would find acceptable.”
According to the report, in Stage 2 the Applicant commenced employment at Carpet Call, Seven Hills on 7 November 2016. During this Stage he also attended community based maintenance meetings of Narcotic Anonymous. The Applicant’s Stage 2 Progress Assessment Report states:
Mr Burton is commended for his persistence and maintenance of stable employment which has provided him with financial stability… Essentially Mr Burton appears to be motivated and determined in continuing with his recovery journey.
According to the CDTCC report, during Stage 3 of the Program the Applicant continued his employment 5-6 days per week at Carpet Call, attended counselling, maintained private rental accommodation, obtained a NSW Drivers’ Learners Licence, developed a supportive relationship and engaged in grief counselling with the CDTCC Chaplaincy.
In an undated handwritten letter [GD pp 72 to 80] and at the Tribunal hearing the Applicant stated that during Stage 3 of the Programme he was working six days a week as a carpet layer and was “starting to build some stability for me and my family”.

He completed 16 months of the Program but was unable to complete the full 18 months as his participation in it ended as a consequence of his assault on the Correctional Officer on 29 May 2017, referenced above at paragraph 43.
According to the CDTCC report, before the incident on 29 May 2017, the Applicant was “progressing extremely well and overall demonstrated a determination to achieve a pro-social and drug-free lifestyle”.
The report notes that during his participation in the CDTCC Program, the Applicant was subjected to 189 urinalysis, of which four returned positive for non-prescribed substances: 2 June 2016 (methadone metabolite), 13 March 2017 (morphine), 30 March 2017 (alcohol), and 25 April 2017 (alcohol). The Applicant was counselled and warned following the detection of these substances however he was permitted to remain in the Program. The report states:
Notwithstanding the above list of recent lapses to alcohol use and the eventual assault against CDTCC Correctional Officer, Mr Burton had otherwise been observed to apply a conscientious effort to adhere to the policies and procedures of the CDTCC. He is commended for his very limited record of breaches of the conditions of his Personal Plans.
The CDTCC report states that whilst the Applicant “did demonstrate many pro-social attitudes and behaviours it would appear he has an unresolved issue with alcohol consumption”. The Applicant’s response was that he was using alcohol in “a measured and responsible manner.” The report noted, “Mr Burton’s lack of insight and defiance in relation to his alcohol consumption was blatant.” When asked about this the Applicant told the Tribunal that he does consume alcohol in moderation and limits himself to one or two beers on social occasions.
Time in Prison and Immigration Detention
In the statement attached to the “Personal Circumstances Form” [GD pp 72 to 80] the Applicant stated:
… my time in prison has always been positive I’ve never had a charge just participated in what programmes I could to better myself.
The Applicant told the Tribunal that he has stayed away from drugs while he has been incarcerated although they are readily available. He stated in a letter to the Department in February 2018:
I’m in a place where I’m offered [drugs] on a regular basis and on no occasion have I had any temptation whatsoever.
The Applicant was asked about incident at VIDC on 24 November 2017 reported in an IHMS report when he was offered and consumed ice. He said this was a “weak moment” due to the stress he was under in VIDC and he took one puff and then declined any more as he didn’t like the taste. He quickly regretted this relapse and he told his fiancée and his counsellor about this as he wanted to be truthful.
In the undated letter [GD p 81] the Applicant stated:
This time, in custody I really believe I have received the help I need to conquer my struggle with addiction. I completed 16 months of the compulsory drug treatment programme, a programme I could call a miracle which helped me to get to the roots of problems in the high intensity programmes. I believe the regular counselling was the key. I never had counselling before, quite a few issues I’m too embarrassed to discuss through letter (sic) but issues I’ve let go of now (sic) going to regular counselling sessions I felt like I’d let go of baggage I’d been carrying for years and found myself in situations being offered drugs without any hesitation just saying no something I don’t believe I could of done before other than when I have gone wrong.
In the same letter, the Applicant stated:
… I wholeheartedly believe this time with all I have learnt I can without a doubt at all I can get out and be the family man I know I have in me the law abiding citizen I know I can be. I have my work partner out there waiting for me to join him again so I can move on from my dark past and start moving forward working towards a healthy future with my family one more chance is all I need.
Intentions and future plans
The Applicant stated in his Personal Circumstances Form [GD p 71]:
Working through all my issues this time round I feel like a new person. I have met a lovely girl who I am starting a family with. I still have all my support here in Australia as people have always known what sought (sic) of person I am of (sic) the drugs
In his statements and in his evidence to the Tribunal, the Applicant said he is in a stable and happy relationship, and his focus is now on his fiancée and their beautiful daughter, who is his first child. The Applicant told the Tribunal that he met his fiancée when she was working at the Westmead Hotel when he was on the CDTCC Program. He was honest with her about his drug-taking and criminal record. They began a relationship and their daughter was born in January 2018. He sees his daughter every Saturday and has done so since she was five weeks old following her vaccinations. He speaks on the phone every day to his fiancée. He wants to be a role model for his daughter in future and he “does not want drugs to be a part of his life”. He is “on the right path now”.
The Applicant told the Tribunal that he will have employment with his business partner Kurt Weller with Carpet Call, Seven Hills if he is permitted to remain in Australia, and he wants to start building some stability for his family. He will be on parole in NSW until 2019 and after this he may return to Western Australia. If he is deported he will be unable to visit the graves of his mother, father and brother in Perth, which is where his younger brother and sister live. It would “destroy” him to be “sent away from what family I have left.”
In the undated letter, referenced above at paragraphs 62 and 63, [GD p 81] the Applicant stated:
I have so much support here in the country I call home and they are all good working people … sending me back to England would be like placing me on another planet and I would feel like I’d lost my whole family and all my friends, fiancée and first child ...
In the “Personal Circumstances Form” dated 28 August 2017 in response to the question: “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?” [GD p 68] the Applicant stated:
I think I would go into deep depression. I have no one there, don’t know the place and family memorial is here of [my] parents.
Evidence of Applicant’s fiancée – Ms Tegan Prendergast
The Applicant’s fiancée gave evidence in person at the hearing and provided a handwritten letter of support dated 29 January 2018.
She told the Tribunal that she and the Applicant met at the Westmead Hotel and they started a relationship. He was honest with her about his criminal conduct and drug use. She and the Applicant are engaged and plan to marry. She is currently on government benefits because she is not working since the birth of their daughter on 18 January 2018.
She confirmed that the Applicant told her the following day about the incident at VIDC when he had a ‘puff’ of ice. He has told her that when he is offered drugs he turns them down.
In relation to their plans for the future, she said they would rent a property and he would work and they would save money to buy a house. They have not yet lived together but they spent two months together before he was imprisoned. She expects they will live in Sydney or Perth but if he is returned to the UK she will join him there.
Evidence of the Chaplain – Reverend Tim Wilson
Reverend Tim Wilson gave evidence in person at the hearing and provided a letter of support dated 14 October 2017 [GD p 92]. He came to know the Applicant through his role as Chaplain with Corrective Services NSW at the CDTCC.
He told the Tribunal that he provided the Applicant with counselling and support, assisted him to complete the therapeutic components of the CDTCC Program and progress to Stage 3 where he lived for a time in the community. In his letter of support he described the Applicant as “an industrious person who is a self-starter with a proven record of being able to contribute to the Australian economy.” In his conversations with the Applicant he “found him to be respectful, courteous and hard working … and a person who has faced many personal tragedies in life but despite this has demonstrated resilience and
patience …”
Reverend Wilson was asked how he reacted when he learned that the Applicant had assaulted a Correctional Officer on 29 May 2017 and was subsequently excluded from the Program. He said he was “shocked”. He believes that the Applicant has taken responsibility for his behaviour and he is ashamed about his conduct.
Evidence of the Applicant’s brother – Bradley Burton
The Applicant’s younger brother, Bradley Burton, gave evidence by phone at the hearing and provided a letter of support dated 9 October 2017 [GD p 82].
He told the Tribunal that the Applicant is “kind, loving, supportive and a good brother”.

He is “a different person on drugs”. In his letter of support he stated:
I am 100% positive Lewis is not returning to the life he once lived. With his partner, baby on the way and a positive outlook he is looking forward to creating a successful life in Australia with his family.
He told the Tribunal that he last saw his brother four or five years ago before he left Perth for Sydney. However they speak on the phone three times a week. He said the Applicant wants to return to WA. He wants the remaining members of his family to be together. In his letter of support he said they “need each other as support” and he is “looking forward to having the older brother I once knew back in [his] life.”
Evidence of the Applicant’s business partner – Kurt Weller
The Applicant’s business partner, Kurt Weller, gave evidence in person at the hearing and provided a short letter of support dated 21 February 2017 [GD p 89].
He told the Tribunal that he met the Applicant in early January 2017 when he was contracting privately for Carpet Call. The Applicant began working with him in April 2017 for a period of two months. He said the Applicant was “hardworking and disciplined” and the Applicant will work for him on his release if he remains in Australia.
Other statements of support
The Applicant provided the following additional letters of support from the following:
·Haley Donovan dated 3 October 2017 [GD p 84]
·Paul Smith dated 18 February and 10 October 2017 [GD pp 85 and 86]
·Blake Martins undated [GD p 88]
·Ben Vanderschoot dated 13 February 2017 [GD p 90]
·Rebecca Bell dated 13 October 2017 [GD p 91]
·Cecilia Correy dated 12 January 2018 [GD p 109]
·
Work reference from Peter Beyerman, Carpet Call dated 13 February 2017

[GD p 93]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
The Tribunal must consider any mitigating circumstances that may militate in favour of setting aside the decision not to revoke the Mandatory Cancellation of the Applicant’s visa. In doing so, it must take into account the Considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
Primary Consideration 1 – Protection of the Australian community
Primary Consideration 1 of Part C is the Protection of the Australian community. Paragraph 13.1(1) of the Direction provides:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 13.1(2) directs that 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 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
The principle that, without limiting the range of offences that may be considered serious, violent and/ or sexual crimes are viewed very seriously;
The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
The sentence imposed by the courts for a crime or crimes;
The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
The cumulative effect of repeat offending;
Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
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);
Nature and seriousness of the Applicant’s conduct to date
In assessing the seriousness of the Applicant’s past criminality, and the risk posed should he commit further offences, the Tribunal notes that the Applicant began offending in 1996 and his offending continued until he was incarcerated on 17 September 2015 for his most recent offences.
Having regard to paragraph 13.1.1(1)(a) and paragraph 13.1.1(1)(b) of the Direction, the Tribunal finds that many of the Applicant’s crimes were violent in nature, were committed against vulnerable victims, and one of his crimes was against a Correctional officer. The Tribunal has had regard to the remarks of the sentencing judges in relation to the Applicant’s armed robbery offences in 2009 and 2015, and finds that the Applicant’s conduct to date has been serious.
Having regard to paragraph 13.1.1(1)(c) and paragraph 13.1.1(1)(d) of the Direction, the Tribunal finds that the Applicant has been sentenced to terms of imprisonment on three occasions. It notes that custodial sentences are imposed as a last resort, and finds that these sentences indicate the seriousness of his conduct.
The Tribunal has had regard to the cumulative effect of the Applicant’s offending in determining the seriousness of his conduct in accordance with paragraph 13.1.1(e) of the Direction. The Tribunal finds that the Applicant’s criminal offending demonstrated a sustained pattern of offences and their cumulative effect indicates the seriousness of his conduct.

The Tribunal has had regard to paragraph 13.1.1(1)(g) of the Direction and notes that the Applicant was warned by the Department of Immigration on two occasions of the consequences of him continuing to re-offend. These warnings, which the Applicant did not heed, are further indications of the seriousness of the Applicant’s offending.
The Tribunal has had regard to the Applicant’s claims that abuse during his childhood and tragic family events caused him to self-medicate and engage in anti-social and criminal conduct. However it notes that the Applicant did not take steps to address his issues and drug addiction until 2016 when he was in prison for his most recent armed robbery offence. The Applicant’s difficult past does not make less serious the offences for which he was convicted and sentenced to terms of imprisonment.
The Tribunal finds that the nature and cumulative effect of the Applicant’s criminal conduct to date are very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2 of the Direction:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
In having regard to the nature of the harm if the Applicant were to re-offend, the Tribunal notes that the Applicant’s criminal offences involved violence and the threat and/or use of force against vulnerable victims. It finds that should the Applicant continue to engage in conduct similar to that which was the subject of his previous convictions, this would potentially cause significant harm to individuals or the Australian community.
In having regard to the likelihood the Applicant will engage in further criminal or other serious conduct, the Tribunal has had regard to the Applicant’s evidence to the Tribunal and in his various statements, the evidence of his fiancée and brother, and his business partner. It also has had regard to the assessment of the Applicant’s progress in the CDTCC Program as reported in the CDTCC report and the evidence of Reverend Wilson.
In determining the likelihood that the Applicant will engage in criminal or other serious conduct, the Tribunal has taken into account the evidence that the vast majority of the Applicant’s crimes occurred when he was a drug addict, and the Applicant’s claims that it was this addiction which caused him to act in an manner about which he is now ashamed.
The evidence before the Tribunal is that the Applicant successfully completed 16 months of the CDTCC Program. During the period of his participation in the Program he received and benefited from counselling to address many unresolved issues and he successfully participated Stage 2 and 3 of the Program during which time he demonstrated his ability to live independently and work in the community. During Stage 3 he met his fiancée and formed a stable relationship which is ongoing, and they now have a daughter together. During this time he also demonstrated his commitment and ability to work hard in his chosen occupation and to form a successful and ongoing relationship with his business partner that will continue if he remains in Australia.
The Applicant’s resolution and commitment to live a drug free life has largely been realised and his sense of purpose and plans for the future in relation to his family and work suggest that this will continue when he is on parole.
The Tribunal notes that the Applicant has previously made similar claims in relation to his drug addiction and commitment to get his life back on track to both the courts and the Minister. These claims were made on his behalf by his counsel at the sentencing hearing on 2 December 2001 [GD pp 31 and 33] and by the Applicant in his response to the first notice of intention to consider cancellation of his visa in 2002 [GD p 137]. Claims of a similar nature were made by the Applicant to explain the armed robbery offences he committed in 2009 and 2015 [GD pp 48 and 51]. In 2010 in response to the notice of intention to consider cancellation of his visa the Applicant also claimed “the drugs will never have a place in my life again.” [GD p 146].
The Tribunal further notes that the Applicant has previously made similar claims after his 2009 armed robbery that he will no longer offend [GD pp 48 and 49] because of his strong relationship with a partner [GD p 136] and his role as a father figure in her children’s lives [GD p 146]. Despite these claims, the Applicant committed his most recent armed robbery in October 2014.
Based on the evidence before it, the Tribunal finds that there is a risk of the Applicant continuing to re-offend, but this risk is mitigated by the Applicant’s positive steps through participation in the CDTCC Program to address his drug addiction and the unresolved personal issues that were a significant contributing factor in his past criminal conduct. This is supported by independent evidence, including the CDTCC report and the evidence of Reverend Wilson, that the Applicant’s commitment to a drug free life is likely to be realised following his release. Furthermore his happy and stable relationship with his fiancée and his role in the life of his newborn daughter are factors which support the Applicant’s claims that he now wishes and intends to be drug free.
The Tribunal makes this finding also on the basis of the Applicant’s evidence to the Tribunal that indicates that he has taken responsibility for his past criminal behaviour, and that he appreciates the significance and seriousness of the offences for which he was convicted and the consequences and impact of any future criminal offending.
In making this finding the Tribunal also has had regard to evidence that the Applicant has the full support of his fiancée, brother, sister and business partner, including a place to live and a job to go to upon his release, and the positive effect this will likely have on his continuing rehabilitation and likelihood of re-offending.
The Tribunal has had regard to the other statements in support of the Applicant and notes that these do not refer to the specifics of his offences. Accordingly, the Tribunal has placed limited weight on these statements in reaching its findings in relation to the risk to the Australian community should the Applicant re-offend.
On the basis of the evidence before it, the Tribunal finds that the risk of the Applicant engaging in further criminal conduct is at the low end of the scale.
In making this finding, the Tribunal has been informed by Principle 5 which provides:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
The evidence before the Tribunal is that the Applicant came to Australia with his parents at very young age and has spent his entire life in this country, including undertaking schooling, prior to him commencing offending at the age of 17.
The length of time the Applicant has been living in Australia and the circumstances under which he migrated here are factors that support a finding that there is a higher level of tolerance by Australia for his serious criminal conduct than there would be for a non-citizen who has lived in the community for a much shorter period of time.
For the reasons above, and applying the guidance in paragraphs 13.1.2(1) and (2) of the Direction, Primary Consideration 1 on balance weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 – The best interests of minor children in Australia affected by the decision
Primary Consideration 2 of Part C in paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[8]
[8] Direction No. 65 at [13.2(2)]
In considering the best interests of the child, paragraph 13.2(4) provides:
In considering the best interests of the child, the following factors must be considered where relevant:
The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
Whether there are other persons who already fulfil a parental role in relation to the child;
Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Having regard to the factors outlined in paragraph 13.2(4) above, the Tribunal notes that the Applicant has a newborn daughter who is an Australian citizen. Having regard to paragraph 13.2(4)(c), the Tribunal notes the evidence before it that the Applicant has seen his daughter every week since she was five weeks old following her vaccinations when she was able to visit him in prison. The evidence before the Tribunal, including that provided by the Applicant and his fiancée, is that the Applicant needs to remain in Australia in order to provide emotional support and parental guidance to his daughter.
The evidence before the Tribunal is that if the Applicant were to be returned to the UK his fiancée and daughter would join him there. However this would separate his fiancée from her family members in Australia who also will play a role in the Applicant’s daughter’s life.
Having regard to paragraph 13.2(4)(d) and (e) above, the Tribunal finds the Applicant’s daughter would benefit from him remaining in Australia and being involved in her daily care and upbringing, together with his fiancée, and providing emotional and financial support to them both. The Tribunal accepts that whereas the Applicant’s daughter is very young and has not yet formed a strong emotional bond with her father, if he is removed from Australia she will be negatively impacted by his absence and the long distance between them.
The Applicant also has a relationship with his three nephews and nieces (GD p 63). The evidence before the Tribunal is that he would see them regularly when he lived in Western Australia, but he has not seen them since early 2014 (GD p 64). Having regard to paragraph 13.2(4)(a) the Tribunal finds that as these are non-parental relationships and, given that there has been a long period of separation between him and the children, these relationships should be given limited weight.
For the reasons above, and applying the guidance in paragraph 13.2(4) of the Direction, the Primary Consideration 2 weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 – The expectations of the Australian community
Primary Consideration 3 of Part C in paragraph 13.3(1) states:
(1) The Australian community expects non-citizens to obey Australia’s laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Direction does not refer to studies or other evidence which may guide the decision-maker in relation to public attitudes and values in determining the expectations of the Australian community: Candemir and Minister for Immigration and Border Protection (Migration) [2017] AATA 531 (Candemir) at [61]. This is therefore a matter ultimately for the decision-maker to determine having regard to guidance found in existing jurisprudence.
In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Justice Mortimer observed in relation to the consideration detailed in paragraph 13.3 of the Direction:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] … It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).
Noting Her Honour’s observations that this consideration inevitably weighs against revocation in that it operates effectively as a deeming provision in relation to expectations of the community, regardless of the existence or otherwise of any objective basis for this, the Tribunal finds that the consideration weighs against revocation of the mandatory cancellation decision.
The Tribunal finds that Principle 2 of Direction 65, which recognises the expectation of the Australian community that a person who commits serious crimes should have their visa cancelled, is reflected in paragraph 13.3 and Justice Mortimer’s finding that this is effectively a deeming provision in relation to the non-revocation of a visa cancellation decision in relation to a person who fails to satisfy the character test.
Accordingly, the Tribunal finds that Primary Consideration 3 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Other considerations
While the Primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that Other considerations must be taken into account by the decision-maker where relevant.
The five other considerations are summarised in paragraph 14(1):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
A non-refoulement obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. There is no suggestion that the Applicant is at risk of harm of the nature that raises Australia’s non-refoulement obligations under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol (Refugee Convention). Therefore, the Tribunal finds that this consideration does not arise on the evidence in this case.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
…Reflecting the principles at 6.3, decision-makers must have regard to:
(a)       How long the non-citizen has resided in Australia, including whether the   non-citizen has arrived as a young child, noting that:
(i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The evidence before the Tribunal is that the Applicant has substantial ties to Australia, particularly his fiancée, brother and sister who are Australian citizens. He has other ties to Australia, including the individuals who provided letters of support.
The evidence is clear that the impact on his family of the Applicant returning to the United Kingdom will be significant, particularly the emotional hardship they will endure and the impact on their lives. His brother and sister will undoubtedly be detrimentally affected by the physical separation between them and the Applicant, and the loss of the opportunity to re-establish their relationships with him. This is particularly so in light of the tragic events that have affected their family and their desire to support each other.
However, there is no evidence before the Tribunal to indicate that his brother and sister would not be permitted to visit the Applicant in the UK and the Applicant’s fiancée has indicated her willingness to join him there if he is returned.
There is no evidence to indicate that the Applicant’s family would not be able to maintain regular contact with him via phone and other forms of communication if he returns to the UK. His brother, who lives in Western Australia, gave evidence that he has not seen the Applicant for four or five years and during his incarceration it was primarily via phone that he maintained contact with the Applicant.

On the basis of the evidence before it, the Tribunal finds on balance that this consideration weighs strongly in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
(1) Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivers an important service in Australia.
The Applicant’s employment prior to his incarceration in 2009 was working for his father as a floor installer from 1991 to 2010 and as a labourer for Carpet Call [GD p 67]. There is no evidence of a relevant ‘employment link’ and the Applicant does not claim that any Australian business interests would be affected by his removal to the UK.
Impact on victims
Paragraph 14.4(1) of the Direction states:
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal finds that there is no evidence of any potential impact on the victims of the Applicant’s criminal activity of a decision not to revoke the Mandatory Visa Cancellation Decision.
Extent of impediments if removed from Australia/not permitted to return
The Direction states in paragraph 14.5(1) that:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The evidence before the Tribunal is that the Applicant knows no one in the UK as he has no family or friends there, he will be alone, and his mental health is likely to be adversely affected by his separation from his fiancée, daughter, brother and sister.
The Tribunal finds that living standards in the UK will not be significantly different to those in Australia. The Applicant is aged 40 and is an experienced floor layer and he should be able to find employment in this industry in the UK. He will not face any language or cultural barriers on his return, and he will have the same access to welfare benefits as all UK citizens, including the NHS Health Scheme should he require treatment for depression. The Tribunal finds that the obstacles the Applicant may experience on his return are real but are not insurmountable.
On balance, the Tribunal finds that the impediments the Applicant will face if he is returned to the UK weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs in favour of revocation of the Mandatory Visa Cancellation Decision. Despite the nature and seriousness of the Applicant’s offences, the risk of him re-offending, while not remote, is at the lower end of the scale. The Applicant clearly regrets his past criminal behaviour, and has an appreciation of the consequences of such behaviour. This, coupled with the fact that he has successfully undertaken 16 months of a program to address his drug addiction and unresolved personal issues, support a finding that weighs in favour of revocation.
Primary Consideration 2 weighs in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s newborn daughter for him to remain in Australia and to have the opportunity to form an emotional bond with her father surrounded by her other family members.
Primary Consideration 3 weighs against revocation of the Mandatory Visa Cancellation Decision for the reasons outlined above, particularly the effective deeming operation of this consideration.
In regard to the Other Considerations, the strength, nature and duration of the Applicant’s ties to Australia weigh strongly in favour of revocation of the Mandatory Visa Cancellation Decision. The extent of the impediments the Applicant will face if he is removed from Australia on balance weigh in favour of revocation.
The Tribunal finds that Primary Considerations 1 and 2 weigh in favour of non-revocation and Primary Consideration 3 weighs against revocation of the Mandatory Visa Cancellation Decision. Two of the Other Considerations weigh in favour of revocation, and these further support a decision in favour of revocation of the Mandatory Visa Cancellation Decision.
DECISION
The reviewable decision made on 21 February 2018, being the decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa, is set aside.
In substitution, the decision to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return visa, made on 22 September 2017, is revoked.

I certify that the preceding 146 (one-hundred-forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

....................[SGD]....................................................
Associate
Dated: 16 May 2018

Date(s) of hearing: 30 April 2018 and 1 May 2018

Applicant: In person

Solicitors for the Respondent: J Hutton – Australian Government Solicitor

[2018] AATA 1313

16 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	30 April 2018 and 1 May 2018
Applicant:	In person
Solicitors for the Respondent:	J Hutton – Australian Government Solicitor