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

[2021] AATA 3643

BYSV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3643 (14 October 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/5118
GENERAL DIVISION	)

Re: BYSV
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Senior Member M Griffin QC

DATE OF CORRIGENDUM:            14 October 2021

PLACE:           Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application to conceal the name, address or any other information tending to reveal the identity of the Applicant.

.....................................[sgd]...................................

Senior Member M Griffin QC

Division:GENERAL DIVISION

File Number(s):      2021/5118

Re:BYSV  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:14 October 2021

Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 22 July 2021. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (visa) is revoked.

.....................................[sgd]...................................

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – mandatory cancellation of visa – Class TY Subclass 444 Special Category (Temporary) visa (visa) – where visa was cancelled under section 501(1) because applicant did not pass character test – substantial criminal record – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – bulk of Applicant’s offending was as a child – substance abuse – best interests of minor children in Australia – cultural ties – expectations of the Australian community – extent of impediments if removed – strength, nature and duration of ties to Australia – other relevant considerations – decision set aside and substituted

LEGISLATION

Migration Act 1958(Cth) ss 499, 500, 501, 501CA, 501E

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

SECONDARY MATERIALS

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M Griffin QC

14 October 2021

1. The Applicant seeks review of a decision of the Respondent by their Delegate made on 22 July 2021 to refuse to revoke cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa (visa) under subsection 501(1) of the Migration Act 1958 (Cth) (the Act).

FACTS

2.       The Applicant, who was born in January 2001 and is a citizen of New Zealand, had his visa cancelled on 13 November 2020 as a result of the commission of offences leading to his having a ‘substantial criminal record’. Therefore, the Applicant fails the character test.

3.       The Applicant came to Australia with his family at about five years of age. As will be discussed below, there are psychological and social issues relating to his family life which this Tribunal regards as having significance in the history of the commission of serious criminal offences which commenced about the age of 16 years.

4.       Set out below is a convenient table provided by the Respondent and which is not relevantly in dispute. That table sets out the commission of the offence, the type of offences committed, and the results. This is particularly relevant in an assessment of the overall understanding of the seriousness of the Applicant’s offending and the likelihood of future offending.

Court	Date	Offence	Result
Parramatta Children's Court	02/10/2020	Affray-T1	Control order s 33(1)(g): 18 months Commencing 06/12/2019 Concluding 05/06/2021 Non-parole period: 9 months
Downing Centre District Court	18/09/2020	Robbery in Company-S1	Imprisonment: 2 years and 4 months Commencing 06/12/2019 Concluding 05/04/2022 Non-parole period with conditions: 1 year and 2 months
Parramatta District Court	08/10/2019	Affray-T1	Order varied Control order s 33(1)(g): 18 months Commencing 08/10/2019 Sentence suspended s 33(1B) with conditions: 18 months not to consume alcohol or any drugs not prescribed by a medical practitioner
Parramatta Children's Court	28/06/2019	Affray-T1	Order revoked Community service order s 33(1)(f): 100 hours community service
Parramatta Children's Court	28/06/2019	Affray-T1	Severity appeal lodged Control order s 33(1)(g): 2 years Commencing 28/06/2019 Sentence suspended s 33(1B) with conditions: 2 years not to consume alcohol or any drugs not prescribed by a medical practitioner. Non-association (unlimited): 12 months Commencing 28/06/2019 Concluding 27/06/2020 Prohibited from being in the company of, and communicating with: Stanley Petratos
Parramatta Children's Court	08/08/2018	Affray-T1	Probation s 33(1)(e): 12 months supv juvenile justice
Parramatta Children's Court	14/03/2018	Common assault-T2	Control order s 33(1)(g): 4 months Commencing 11/01/2018 Concluding 10/05/2018
Parramatta Children's Court	14/03/2018	Common assault-T2	Control order s 33(1)(g): 4 months Commencing 11/01/2018 Concluding 10/05/2018
Parramatta Children's Court	14/03/2018	Affray-T1	Control order s 33(1)(g): 12 months Commencing 11/01/2018 Concluding 10/01/2019 Non-parole period: 9 months
Parramatta Children's Court	08/08/2017	Assault occasioning abh in company of other(s)-T2	Control order s 33(1)(g): 18 months Commencing 24/05/2017 Concluding 23/11/2018 Non-parole period with conditions: 6 months
Parramatta Children's Court	08/08/2017	Aggravated robbery-S1	Control order s 33(1)(g): 18 months Commencing 24/05/2017 Concluding 23/11/2018 Non-parole period with conditions: 6 months
Parramatta Children's Court	08/08/2017	Common assault-T2	Probation s 33(1)(e): 2 years
Parramatta Children's Court	08/08/2017	Affray-T1	Control order s 33(1)(g): 6 months Commencing 24/05/2017 Concluding 23/11/2017
Parramatta Children's Court	08/08/2017	Assault occasioning actual bodily harm-T2	Control order s 33(1)(g): 18 months Commencing 24/05/2017 Concluding 23/11/2018 Non-parole period with conditions: 6 months
Parramatta Children's Court	08/08/2017	Affray-T1	Control order s 33(1)(g): 6 months Commencing 24/05/2017 Concluding 23/11/2017
Parramatta Children's Court	08/08/2017	Affray-T1	Control order s 33(1)(g): 6 months Commencing 24/05/2017 Concluding 23/11/2017
Parramatta Children's Court	08/08/2017	Common assault-T2	Probation s 33(1)(e): 2 years
Parramatta Children's Court	08/08/2017	Affray-T1	Control order s 33(1)(g): 6 months Commencing 24/05/2017 Concluding 23/11/2017

ISSUES

5.       The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.

6.       The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.

RELEVANT LEGISLATION AND POLICY

7.       Section 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: see s 501CA(1).

8.       Section 501CA(4) provides that:

(4)The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

9.       In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:

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.

10.     Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.

11.     The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.

12.     Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal or review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

13.     The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(a)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come 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 (paragraph 5.2(1));

(b)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 (paragraph 5.2(2));

(c)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 risk of causing physical harm to the Australian community (paragraph  5.2(3));

(d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));

(e)decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).

14.     Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

15.     Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).

(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).

(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).

16.     These principles are of course dependent upon the facts and circumstances of each case.

17.     The primary considerations are:

(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)The best interests of minor children in Australia (Primary Consideration 3); and

(4)Expectations of the Australian community (Primary Consideration 4).

18.     The Tribunal must also take into account other considerations insofar as they are relevant.

19.     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.

THE CHARACTER TEST

20.     As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.

21.     For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.

22.     In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.

EXERCISING THE DISCRETION

23.     In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.

Primary Consideration 1 – Protection of the Australian community

24.     Paragraph 8.1 of Direction No. 90 provides:

(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.

25.     Paragraph 8.1(2) of Direction No. 90 provides 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.

The nature and seriousness of the Applicant's conduct to date

26.     Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a)without limiting the range of offences 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 (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(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 (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

(i)causing a party 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 risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

27.     Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

(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.

(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).

c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Seriousness of offending and future risk

28.     Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.

29.     The Applicant's offending is undoubtedly serious. The offences dealt with in the District Court of robbery which involved personal violence should be seen against a background of a continuing history of social / criminal behaviour from an early age of about 16 years. It appears that no orders of the Children's Court seem to have deterred the Applicant.

30.     It is, however, highly relevant in terms of assessing responsibility in a criminal and social sense to appreciate that the bulk of the Applicant’s offending was as a child. The large proportion of those offences all seem to have been committed in a ‘gang’ setting and they reflect a run-of-the-mill, anti-social but nonetheless serious violent behaviour against other members of the community. It is apparent from the Applicant’s offending that he simply has not had, to this point in time, any intervention that has curtailed or limited this unbridled anti-social and violent behaviour.

31.     That is not to say, however, that he should be regarded in the same category as a more mature male and this Tribunal is firmly of the view that all this conduct described, particularly the most recent offences as an adult, should be viewed in the context not only of his youth but also of his family background which was both violent and disruptive in a psychological sense.

32.     This much is clear and supported by the particularly impartial, sensitive, balanced and well-reasoned psychological report produced at sentence by the psychologist, Ms Dombrowski. It appears the report was largely accepted by the Learned Sentencing Judge and this Tribunal, independently, is prepared to accept those matters in the report which detail the Applicant's family background, the violence perpetrated against the Applicant, and the effects of those matters on his developmental behaviour and criminal conduct leading to his incarceration.

33.     The Tribunal, in particular, refers to the following passage where the psychologist described the Applicant regularly witnessing his father's physical abuse of his mother and siblings and being subject to physical abuse by the father ‘on most days throughout his childhood’. There is no reason to suppose that the Applicant's description of feelings of being scared of his father and ashamed of his injuries in public had some effect on the Applicant's later conduct. The father provided a written statement of evidence in these proceedings.

34.     Typically, the Applicant followed his father's behaviour by starting to drink heavily at about 16 years of age and this constant use of alcohol is described by the report author as being directly related to his offending conduct. The Tribunal accepts, as did the Learned Sentencing Judge, that there was a direct relationship to this substance abuse and the criminal conduct. The report author, in describing developmental issues with the Applicant, considers that there may have been a psychological basis and be symptomatic of an underlying anxiety disorder, panic attack and psychological trauma resulting from childhood abuse ... he also experiences flashbacks and strong emotions related to when he was robbed and assaulted at age 14.

35.     The Tribunal has formed the view that the Applicant is not so sophisticated that he could use those statements improperly to affect the opinion of the report author and further, that the report author would not be alive to the manipulation of her report if the statements made by the Applicant were not actually genuine.

36.     The Respondent emphasises also the conduct of the Applicant whilst in custody and points particularly to the most recent episode of conduct in which the Applicant, apparently in a very angry state, pushed a custodial officer. There are other episodes of fighting and physical violence in which the Applicant has been involved. It goes without saying that the atmosphere in such institutions is likely to be a hothouse of emotions, particularly for someone who has experienced those matters referred to in the Applicant's case. Whilst not condoning or ignoring the Applicant's behaviour, it should be seen in its proper context and it does not, in the Tribunal’s view, add to or enlarge the concerns the Tribunal already has for the seriousness of the Applicant’s past conduct and the likelihood of future offending. The Tribunal recognises the conduct but does not, in the circumstances of this case, regard it as determinative or highly significant.

37.     The Applicant's conduct is serious. That is undeniable. It must, however, be seen in its proper context, that is, the behaviour in the most part of an immature youth. His conduct has merged into that of a young adult and whose conduct has an explainable foundation. That conduct should be viewed fairly and the criminal responsibility for that conduct should be diminished to some extent by both the Applicant's age and his background which has been referred to above.

38.     As to the question of future risk, clearly there is that real possibility. The Learned Sentencing Judge, with whom the Tribunal agrees, regarded the Applicant as expressing real contrition. The Tribunal is of the opinion that the Applicant is capable of rehabilitation and that much the Tribunal accepts by a careful consideration of the Applicant's evidence at hearing. So often applicants in these circumstances protest their rehabilitation and insight into offending. In this case, the Tribunal accepts the Applicant's protestations as genuine.

39.     Although the Applicant has undertaken a number of courses (although those may be counted merely in terms of a relatively few hours) nonetheless, undertaking those courses does suggest some determination to rehabilitate.

40.     The Tribunal accepts that the Applicant will have some support from his mother and father, in particular, should he be released. Furthermore, there is, in the Tribunal’s opinion, a very strong protective factor. That is, that the Applicant will be on parole should he be released into the community. That, in the Tribunal’s opinion in this Applicant's case, is a strong deterrent to future poor conduct. Furthermore, society will be well protected should the Applicant attempt to offend in the future by loss of his freedom through revocation of parole should re-offending occur.

41.     Overall, this consideration counts against the Applicant. However, in the Tribunal’s view, it should be ameliorated to some real extent by virtue of the factors referred to above. In all the matters that the Tribunal is required to take into account, this consideration weighs against the Applicant but does not weigh so heavily that it is determinative of the overall outcome.

Primary Consideration 2 – Family violence committed by the non-citizen

42.     Paragraph 8.2(1) of Direction No. 90 provides that 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 are proportionate to the seriousness of the family violence engaged in by the non-citizen.

43.     Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’.

44.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

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 (sub-paragraph 8.2(2)(a)); 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 has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).

45.     Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of 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 in increasing seriousness (sub-paragraph 8.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); 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 (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).

46.     There is no evidence to indicate that this consideration is relevant to this review.

Primary Consideration 3 – Best interests of minor children in Australia

47.     Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

48.     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).

49.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

50.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. 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) (sub-paragraph 8.3(4)(a));

b)the extent to which the Applicant 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 (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways  (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

51.     The Applicant has three relevant siblings whose ages are 4 years, 11 years and 17 years. There are also four cousins whose ages are 2 years, 7 years, 10 years and 12 years.

52.     As to the Applicant’s cousins, the Tribunal is cognisant of the fact that, in a cultural sense, relationships amongst blood relatives are regarded as important and there is no reason to suppose that the Applicant's family is any differently affected by those cultural ties. There is little evidence to make distinctions and draw similarities amongst those cousins, apart from the fact that their ages will necessarily dictate the type of relationship those children have with their Applicant cousin.

53.     The Tribunal accepts that because of the various dimensions of those relationships, those minor children will most likely be affected should the Applicant be physically removed from contact with them. This bears some weight in the Applicant’s favour.

54.     Of greater significance are the three siblings, in terms of the likelihood of their interests being affected by the Applicant’s removal from Australia. It is recognised by the Tribunal that all three are of quite different ages and would necessarily have a separate and distinct relationship with the Applicant depending upon their age. Furthermore, the Tribunal recognises that the eldest, aged 17, will in a relatively short time, no longer be a relevant minor child.

55.     However, both in the case of someone with ‘special needs’ and the 11 year old, J, who has autism, the Tribunal accepts that despite the Applicant's poor past conduct there is a special relationship with those two siblings as well as the 4-year-old sibling, L. The Tribunal recognises the cultural ties and significance of family relationships and particularly with those minor children.

56.     Even though it is possible to maintain some form of contact by electronic means, should the Applicant reside elsewhere than Australia, it is far from ideal and actual physical contact is certainly in the best interests of those minor children.

57.     The Applicant of course has no parental role, but the role of the eldest male in the family is, in the Tribunal’s view, considered to be of some significance in this consideration.

58.     This consideration, overall, weighs in the Applicant's favour.

Primary Consideration 4 – Expectations of the Australian community

59.     Paragraph 8.4(1) of Direction No. 90 provides as follows:

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 not to allow such a non- citizen to enter or remain in Australia.

60.     Paragraph 8.4(2) also provides that it 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:

(a)   acts of family violence; or

(b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c)   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;

(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)   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

(f)    worker exploitation.

61.     The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

62.     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 (sub-paragraph 8.4(4)).

63.     This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.

64.     It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’ stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).

65.     The Australian community would recognise the length of time the Applicant has spent in Australia since childhood and his relative youth, notwithstanding the commission of the offences for which he has been sentenced.

66.     Nonetheless, this consideration must clearly weigh against the Applicant.

OTHER CONSIDERATIONS

67.     A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):

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

68.     The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)It may not be possible at the section 501/section 501CA stage to consider non­refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

69.     There is no evidence to indicate that this consideration is relevant to this review.

Extent of impediments if removed

70.     Paragraph 9.2(1) of Direction No. 90 provides:

(1)Decision-makers must consider the extent of any impediments that the non­citizen 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.

71.     In the Tribunal's opinion, it is highly relevant to take into account the fact that the Applicant has lived in Australia since he was 5 years of age. The Applicant has no sense of life in New Zealand and although New Zealand society is not dissimilar to that of Australia, removal to that country without the benefit of any substantial family assistance would act as a real impediment to the Applicant settling in New Zealand, or Tonga for that matter. The Tribunal accepts that Tongan society, should the Applicant live in that country, is socially, and in terms of other governmental amenities, including health, of a much lesser standard than that of Australia. The Applicant, the Tribunal finds, would most likely find it very difficult to settle into the Tongan society.

72.     Removal of the Applicant to New Zealand would create initial quite difficult social and emotional issues for the Applicant having regard also to the peculiar personal issues that the Applicant faces according to the report of the psychologist referred to above. It is likely the Tribunal accepts that the Applicant would be in fear of being homeless, if not actually finding himself in that situation. There would be initial difficulties for the Applicant in obtaining employment.

73.     The Applicant, removed as he would be from Australia, would keenly sense and be emotionally affected by removal from his family in Australia as well as the society in which he has grown up.

74.     This consideration weighs in the Applicant's favour.

Impact on victims

75.     Paragraph 9.3(1) of Direction No. 90 provides:

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…

76.     There is no evidence to indicate that this consideration is relevant to this review.

Links to the Australian community

77.     Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

9.4.1.   The strength, nature and duration of ties to Australia

(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.

(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 non­ citizen 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.

78.     The Applicant has lived in Australia for 15 years and his parents and siblings reside in Australia as well as his extended family. Despite the catalogue of offending, the Applicant has contributed to Australian society through the playing of sport.

79.     The Applicant knows only Australian society and removal from Australian society, that is from those links which are effectively his whole life living in Australia, would be significant. Likewise, the knowledge of the loss of his family and their concern at his removal also are relevant factors to consider when discussing strength, nature and duration of ties to Australia.

80.     The Applicant’s two elder siblings require some extra assistance and attention, as does the Applicant's mother. The Applicant, on the evidence, is presently the single important male figure in that family unit.

81.     The facts of this case, the Tribunal accepts, that the links to the Australian community, including the cultural nature of the ties of the Applicant to his family, including his extended family, lead to a conclusion that this consideration weighs in the Applicant's favour.

9.4.2    Impact on Australian business interests

(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.

82.     There is no evidence to indicate that this consideration is relevant to this review.

Other relevant considerations

83.     The categories of considerations are unlimited under Direction No. 90.

84.     In this matter, the Tribunal is cognisant of a real likelihood of the Applicant continuing to offend in the manner of previous offending. However, it is highly relevant, in the Tribunal’s opinion, that account be taken of, and weight be given to, the fact that the Applicant was a relatively youthful offender during the entirety of his offending, including the last offending when he was dealt with as an adult. Not only should recognition and weight be given to this but the criminal responsibility for his offending should be reduced on account of that youthful offending.

85.     Furthermore, recognition and weight must be given, in the Tribunal’s opinion, to the fact that although the Learned Sentencing Judge set a substantial period of rehabilitative assistance by way of parole to be given to the Applicant, that assistance has been denied to the Applicant. The assistance, given by way of parole, was a recognition by the Sentencing Judge, and accepted independently by this Tribunal, that the Applicant was someone who was capable of reform and rehabilitation.

86.     The fact that the Applicant was taken into immigration detention before the entirety of the sentence was allowed to work, that is to say before the Applicant had the opportunity to be assisted during a parole period for rehabilitation, is a significant factor, in the Tribunal’s opinion.

87.     There is evidence of the Applicant’s attempted rehabilitative courses and that attempt has also been thwarted, in the Tribunal's opinion, by the Applicant being taken into immigration detention. In fact, it seems from the psychologist’s report that the immigration detention itself is an environment where the Applicant's rehabilitation is likely to be thwarted by the atmosphere of immigration detention.

88.     This combination of factors, which the Tribunal concludes is a relevant and special consideration in this case, together with those other factors referred to above which weigh in the Applicant's favour, all combine to produce another reason why the original decision should be revoked.

CONCLUSION

89.     In this case, there is another reason the Tribunal finds for reversing the decision of the Delegate.

90.     The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 22 July 2021. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (visa) is revoked.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

...................................[sgd].....................................

Associate

Dated: 14 October 2021

Date(s) of hearing:	30 September 2021
Solicitors for the Applicant:	Mr F Nikjoo, Nikjoo Lawyers
Solicitors for the Respondent:	Ms C Campbell, HWL Ebsworth Lawyers