Camarse and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 2146

Camarse and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2146 (20 June 2024)
Division:GENERAL DIVISION
File Number: 2024/2101
Re:Ryan Camarse
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date of decision: 20 June 2024
Date of written reasons: 28 June 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal sets aside the decision made by a delegate of the Respondent on 3 April 2024 and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa.
...........................[SGD]........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – non-revocation of mandatory cancellation of a visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – Tribunal finding the Applicant has strong protective factors in Australia – Tribunal finding Applicant’s recidivist risk as acceptable – Tribunal finding factors against revocation outweighed by factors in favour of revocation - Tribunal finding there is another reason to revoke the mandatory cancellation decision - decision under review set aside and substituted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairsv Thornton [2023] HCA 17
Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468
PNLB v Minister for Immigration and Border Protection [2017] AATA 1561
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
28 June 2024
INTRODUCTION

Mr Ryan Camarse (‘the Applicant’) is a 42-year-old citizen of the Philippines. He first arrived in Australia on his 21^st birthday on 2 November 2002. Since his arrival he departed from and returned to Australia on 20 occasions between the period 31 May 2003 and

12 November 2019. These 20 departure/arrival events caused him to be absent from Australia for a cumulative period approximating 49.5 months or just over four years. It can be safely found that he spent approximately 18.5 of the 42 years of his life in this country. This means he has spent about 43 percent of his life here.[1]
[1] See generally the Applicant’s movement history at R3, pp 128-131.
PROCEDURAL HISTORY
It is important to note that this matter was originally constituted to another Senior Member of this Tribunal who duly conducted the hearing on 3 June 2024. It is an expedited matter pursuant to section 500(6L)(c) of the Migration Act 1958 (Cth) (‘the Act’) which compelled this Tribunal to ‘make a decision’ by a specific day, that being 28 June, 2024. Failure by the Tribunal to make a decision by that day would result in the decision now sought to be reviewed being automatically affirmed without any further recourse available to the Applicant in this Tribunal.
There have been several procedural factors impacting this matter since its hearing:
·following conclusion of the hearing on 3 June 2024 the relevant Tribunal Senior Member before whom the hearing was ventilated became unfit for work and it was unclear when that Tribunal Member would be fit to resume work;
·
this Tribunal’s President did, by way of a duly made procedural direction on

20 June 2024, reconstitute the matter to me; and
·the abovementioned hearing of the instant application was conducted during the currency of Ministerial Direction 99.[2] On 7 June 2024 the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) signed a new Ministerial Direction 110 which was stated to take effect on and from 21 June 2024.
[2] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
Given these procedural developments, I listed an urgent telephone directions hearing for 12:30 PM on 20 June 2024, that day being the cusp between cessation of Ministerial Direction 99 and the commencement of Ministerial Direction 110. The purpose of the emergent telephone directions hearing on 20 June 2024 was to:
·notify the parties of the unavailability of the Tribunal Senior Member to ‘make a decision’ and to otherwise deliver written reasons;
·ascertain from the parties whether they wanted the application determined pursuant to Ministerial Direction 99 or 110. If the latter Ministerial Direction was preferred then further procedural directions needed to be made for the ventilation of submissions and associated material to facilitate (1) a further hearing and (2) a decision by the Tribunal by the statutory deadline for doing so, that being 28 June 2024; and
·seek the agreement of the parties for me to conduct the matter on a reconstituted basis from the original Tribunal Senior Member before whom the hearing was ventilated.
Due to the prompt availability of the respective representatives of the parties (for which the Tribunal is most grateful) the parties confirmed the following with the Tribunal during the course of the emergent telephone directions hearing at 12:30 PM on 20 June 2024:
·the parties endorsed reconstitution of the matter me;
·the parties expressed a joint preference for the Tribunal to make a decision in this matter pursuant to Ministerial Direction 99;
·the parties understood that in adopting this course, I would be compelled to:
ore-hear the matter (via hearing the audio recording of the hearing conducted on 3 June 2024 and contemporaneously reviewing the entirety of the transcript of that hearing) during the afternoon and evening of 20 June 2024;
o
deliver a short-form decision pursuant to Ministerial Direction 99 on

20 June 2024, that being the final operative day of that Ministerial Direction before Ministerial Direction 110 commenced on the following day; and
odeliver detailed written reasons for the abovementioned short-form decision a reasonable time after 20 June 2024.
Accordingly, I caused a short-form decision to be duly published to the parties on

20 June 2024 such as to ensure this Tribunal met the decisional requirements of

section 500(6L)(c) of the Act. Attached to these Reasons and marked ‘Annexure A’ is a true and correct of that short-form decision. Pursuant to the authority of Khalil v Minister for Home Affairs (2019) 271 FCR 326[3] , I now publish my detailed written reasons within a reasonable time after publication of my short–form decision.
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–⁠[48].
My re-hearing of this matter (including a fulsome review of the transcript) led me to understand that a total of three exhibits were tendered during the hearing on 3 June 2024. Attached to these Reasons and marked ‘Annexure B’ is a true and correct list of those exhibits. It should be noted that to the original list of three exhibits recorded in the transcript, I have added two further exhibits comprising Exhibit A2 which is the Applicant’s SFIC[4] and Exhibit R4 which is the Respondent’s SFIC. The hearing received oral evidence from two witnesses comprising (1) the Applicant and (2) his mother, Ms Susana Brondial.
[4] Denoting ‘Statement of Facts, Issues and Contentions’.
THE APPLICANT’S VISA HISTORY
The Applicant’s visa history in this country may be stated thus:
·on 18 July 2023, the Applicant received a sentence comprising an aggregate term of two years and six months’ imprisonment with a non-parole period of 12 months;[5]
·on 21 August 2023 the Applicant’s Class BB Subclass 155 Five Year Resident Return visa (‘the Visa’) was mandatorily cancellated pursuant to section 501(3A) of the Act;[6]
·on 10 September 2023 the Applicant requested revocation of the mandatory cancellation of his Visa;[7]
·on 3 April 2024 a delegate of the Respondent decided that the immediately preceding mandatory cancellation decision would not be revoked.[8] For the purposes of these Reasons, I will refer to this non-revocation decision as the ‘Decision Under Review’; and
·on 9 April 2024 the Applicant applied to this Tribunal seeking review of the immediately preceding non-revocation decision which I have defined as the Decision Under Review.[9]
[5] R3, pp 29-32.
[6] R3, pp 134-139.
[7] R3, pp 47-48.
[8] R3, pp 13-27.
[9] R3, pp 1-9.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this 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.
I am satisfied that the Applicant made the representations required by section 501CA(4)(a) of the Act. I am also satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to section 500(1)(ba) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
Does the Applicant pass the character test?
The Applicant does not pass the character test as a matter of law.[10] He received the abovementioned aggregate head sentence of two years and six months on 18 July 2023 and thus meets the respective threshold requirements appearing in section 501(6)(a) of the Act (‘substantial criminal record’) and section 501(7)(c) of the Act (‘sentenced to a term of imprisonment of 12 months or more’). Accordingly, the Applicant cannot rely on section 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[10] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
Is there another reason to revoke the mandatory cancellation of the Applicant’s Visa?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa pursuant to section 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[11]
[11] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia 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.
2Non-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.
3The 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 measurable risk of causing physical harm to the Australian community.
4Australia 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.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6
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 8.55(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 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to
keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
The extent of the offending
Prior to assessing the nature and seriousness of the Applicant’s unlawful conduct in this country it is, to my mind, necessary to obtain a fulsome understanding of the totality of this Applicant’s convictions. As a result of his unlawful activity in this country, the Applicant:
·has compiled an offending history that, in terms of sentencing dates, runs from September 2011 to July 2023 which is a period of about 11 years;
·has convictions for being found guilty for the commission of 27 offences;
·has been dealt with at eight separate sentencing episodes;
·has received fines in the total sum of approximately $1,700;
·has received an order to pay compensation in the sum of $120;
·has received (on two occasions) intensive correction orders for 15 and 18 months respectively; and
·has received a cumulative period of head custodial time comprising two years and six months with a non-parole period of 12 months.
The parties’ respective positions
There was a ready concession made by the Applicant’s representative that ‘…the applicant has a substantial criminal record…’[12] but that ‘…the applicant’s criminal record, the offences are largely theft and dishonesty charges.’[13] This concession has its echo in the Applicant’s SFIC where it is noted that ‘The applicants offending can be deemed as serious by the Tribunal.’[14] The Applicant’s assessment of the nature of the offending appears to align with that of the Respondent who contends ‘…the applicant’s offending should be viewed seriously.’
[12] Transcript, p 50, lines 33-34.
[13] Transcript, p 51, lines 3-4.
[14] A2, p 5 [25(a)].
Nguyen
Prior to this Tribunal reaching any concluded view about the nature and seriousness of the Applicant’s offending it is necessary to understand precisely which of his offences can be taken into account for present purposes. I am mindful of Nguyen and Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468 (‘Nguyen’) which stands for the proposition that offences dealt with under Division 3 of Part 3 of the Sentencing and Procedure Act 1999 (NSW) (often referred to as being dealt with on a ‘Form 1 basis’) engage section 85ZR(2) of the Crimes Act 1914 (Cth) in the same way as contemplated in the matters of Lesiananwai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6 and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17.
I will proceed on the basis that this Tribunal is bound by Nguyen. A review of the Applicant’s criminal history reveals that only one of his 27 convictions proceeded on a ‘Form 1 basis’ and that was his conviction on 2 February 2017 for the offence of ‘Steal dog’. Accordingly, I will reduce the totality of the Applicant’s offences I can take into account from 27 to 26. His period of offending of 12 years remains unchanged, as does the number of sentencing episodes (8) as well as the nature and extent of sentences that have been imposed on him.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

When viewed in its totality, the Applicant’s offending history crystallises into predominantly one involving offending in the realms of theft of property and dishonesty. It is conduct that derives its primary orientation from the Applicant’s unfortunate and regrettable history of illicit substance abuse. As best as I understood the offending history, none of it involved the commission of overtly violent or sexual crime,[15] nor did it involve crimes of violence against women or children[16] and nor did it derive from the commission of acts of family violence[17]. As such, it would not be safe to allocate the ‘very serious’ descriptor to the Applicant’s offending as would otherwise be required by the language in the chapeau to Primary Consideration 8.1.1(1)(a) of the Direction.
[15] Paragraph 8.1.1(1)(a)(i) of the Direction.
[16] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[17] Paragraph 8.1.1(1)(a)(iii) of the Direction.
The offending history has not involved the Applicant causing a person to enter into or otherwise being a party to a forced marriage.[18] He does not appear to have committed a crime against ‘vulnerable members of the community’ such as the elderly or public officers in the performance of their statutory duties.[19] The Applicant fails the character test as a matter of law.[20] I am not required to make any finding about whether any of his conduct forms the basis for a finding that the he does not pass an aspect of the character test that is dependent on my opinion.[21] The material does not disclose anything about the Applicant committing a crime while in immigration detention.[22]
[18] Paragraph 8.1.1(1)(b)(i) of the Direction.
[19] Paragraph 8.1.1(1)(b)(ii) of the Direction.
[20] See [9] of these Reasons.
[21] Paragraph 8.1.1(1)(b)(iii) of the Direction.
[22] Paragraph 8.1.1(1)(b)(iv) of the Direction.
The chapeau to paragraph 8.1.1(1)(b) refers to conduct that may be considered ‘serious’. That conduct is particularised in sub-paragraphs (i)-(iv) of that paragraph. It would appear that the Applicant’s unlawful conduct engages none of those four sub-paragraphs. I will therefore look at the remaining sub-paragraphs of paragraph 8.1.1(1) of the Direction to arrive at a descriptor for the nature of the Applicant’s unlawful conduct in this country.
The first of those remaining sub-paragraphs looks at the sentences imposed by the courts for the crimes committed by this Applicant.[23] In making this analysis, I am precluded from taking into account sentences imposed on this Applicant for:
(i)any violent offending he may have committed against women and children;[24]
(ii)acts of family violence;[25] and
(iii)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[26]
[23] Paragraph 8.1.1(1)(c) of the Direction.
[24] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[25] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[26] Paragraph 8.1.1(1)(b)(i) of the Direction.
He has no convictions in any of the three categories in the immediately preceding paragraph. This means all of his sentencing history[27] can be taken into account for the assessment of the nature of this unlawful conduct. As outlined earlier, the Applicant has received a very broad ambit of sentences ranging from a community service order, fines, an order to pay compensation and intensive correction orders. Of course, none of these sentences involved the imposition of custodial time and they can surely only point to a finding that the Applicant’s conduct has been ‘serious’ as opposed to ‘very serious’.
[27] Less, of course, the Nguyen affected conviction for ‘Steal dog’.
That position changes consequent upon the Applicant’s appearance at the Hornsby Local Court for sentencing on 18 July 2023. On that day he was sentenced for 10 break and enter offences and one offence of receiving stolen property. For that offending, the Applicant received respective head custodial terms of two years and six months with a non-parole period of 12 months. This type of sentence can be safely found to be exponentially more significant than the earlier sentences imposed on him. It is well-settled that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[28] The imposition of a custodial term should be viewed as a reflection of the objective seriousness of the offending involved.
[28] PNLB v Minister for Immigration and Border Protection [2017] AATA 1561 at [43].
Aggregating these custodial sentences points to a cumulative period of head custodial time of something like 30 years. Of course, the Applicant did not have to serve the sentences on a cumulative basis but the fact remains (and the finding should be) that his property offending did attract a very significant level of head custodial time. I am comfortably satisfied that the imposition of these multiple custodial terms leads to a finding that the sentences imposed on this Applicant most certainly speak to the (at least) serious nature of his offending in this country.
The Applicant’s offending has been both frequent and demonstrative of a trend of increasing seriousness.[29] For present purposes, I can take into account his commission of 26 offences for an offending period that, in sentencing terms, runs from September 2011 to July 2023. This is offending at the rate of over two offences per year. He found himself before courts for sentencing about every 18 months across that 12-year offending history. This is plainly frequent offending.
[29] Paragraph 8.1.1(1)(d) of the Direction.
It is also offending that has been increasing in seriousness. His first 10 convictions are relatively unremarkable. However, from then onwards, his offending became significantly more serious because it (1) involved him breaching the boundary of a member of the public’s home domain and (2) intentionally depriving that person of the property to which they were lawfully entitled. It could be said that the first part of the Applicant’s offending caused limited harm to its victims. When he started committing his break and enter and stealing offences, it crossed the threshold from relatively unremarkable offending and into serious offending. The frequency of that offending and its increasing trend of seriousness are factors that inevitably speak to the overall serious nature of his conduct.
Inherent seriousness can also be seen from the cumulative effect resulting from his repeated offending.[30] First, it would appear he has experienced no deterrent effect from the sentencing regime progressively imposed upon him. The sentences for his first nine offences (excluding the Nguyen-affected ‘Steal dog’ offence) were non-custodial yet the Applicant learnt nothing from those non-custodial admonitions. He proceeded to commit a raft of property offences that attracted a significant amount of head custodial time.
[30] Paragraph 8.1.1(1)(e) of the Direction.
Second, his conduct is demonstrative of a person who does not respect the lawful authority governing the community back into which he now seeks re-admission. That lack of respect is rooted in his unresolved issues with illicit substance abuse which compelled him to commit offences as a means of acquiring the material wherewithal to fund his drug addiction. Third, the sheer scope and extent of his offending can be safely found to have consumed more than its fair share of the community’s policing, judicial sentencing and custodial resources. A significant amount of those community resources would have been allocated to the detection and prosecution of 26 offences committed over a 12-year period of offending.
Fourth, perhaps the cumulative effect with the loudest voice in the context of this Applicant has been his difficulties with illicit substance abuse and addiction. This has been at the epicentre of his propensity to commit offences against members of the Australian community. The specific cumulative effect to which I refer is one which involves the question of whether the Applicant has managed to overcome those drug addiction difficulties. I will talk more about this when discussing the Applicant’s recidivist risk. But I am satisfied that his drug issues have constituted a cumulative effect of his repeated offending.
I am satisfied that the abovementioned four cumulative effects of the Applicant’s offending cause this paragraph 8.1.1(1)(e) to strongly militate in favour of a finding that this Applicant’s offending in Australia has been ‘serious’.
It seems plain from the evidence that the Applicant has provided false or misleading information to the Respondent’s Department by not disclosing prior criminal offending.[31] This conduct derives from his incorrect completion of at least two incoming passenger cards respectively completed in November 2019 and January 2016. Both of those transgressions involved him ticking the ‘No’ answer to the question ‘Do you have any criminal conviction/s?’ The Applicant was not cross-examined about this at the hearing. He readily acknowledges (in his SFIC) that he did provide this false information about his offending. It can be safely found that the Applicant’s provision of the two false responses in the respective incoming passenger cards is a factor that speaks to his conduct now being found to be ‘serious’.
[31] Paragraph 8.1.1(1)(f) of the Direction.
The material does not contain any reference to the Applicant receiving any formal written warning about the consequences of further offending and how it could impact his migration status to remain here.[32] As best as I comprehended the material, it does not disclose the commission or conviction of any other offence by this Applicant in another country.[33]
[32] Paragraph 8.1.1(1)(g) of the Direction.
[33] Paragraph 8.1.1(1)(h) of the Direction.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence. The relevant paragraphs applicable to the instant facts safely lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘serious’.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Any unlawful entry across the threshold of a victim’s private abode must surely be found to be traumatic for that victim. A different form of trauma ensues when a victim of a property theft offence is faced with the reality of having been deprived of their property as a result of such offending. I am satisfied that were this Applicant to repeat - in particular – his offences against the property of others, the nature of the harm that would ensue could very well include significant psychological harm to the occupiers of dwellings broken into by the Applicant. Those victims would also suffer measurable financial loss as a result of the unlawful deprivation of their property.
I am therefore satisfied that in the event of recommission of this Applicant’s property – derived offending, the nature of the harm it would represent to its victims would range from psychological harm to measurably material (i.e. financial harm) harm. I so find.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
What does the Respondent say?
The Respondent makes the global contention that the Applicant’s offending has been closely tied to his difficulty with illicit substance abuse, specifically, methamphetamine. The Respondent questions the Applicant’s claim that his most recent difficulties with illicit substance abuse recommenced after his father’s death which, in turn, is now said by the Applicant to have precipitated his offending. The Respondent further contends that this Tribunal should have similar misgivings about the extent of the Applicant’s rehabilitation and how that claimed rehabilitation now speaks to his recidivist risk.
The Respondent cites four reasons for this Tribunal to not accept the Applicant’s contention about his claimed level of recidivist risk and that it ‘…should instead find that there is an extant risk of the applicant reoffending.’[34] Those four reasons are these:
·the Applicant’s very long history of using methylamphetamine from 2008 to early 2023 is a significant period of time which points to an ‘entrenched addiction to a notoriously addictive substance’[35];
·while the Applicant may have undertaken significant rehabilitation consequent upon his offending convicted in 2023, the Respondent contends that this rehabilitation ‘…was not affected in preventing the applicant from engaging in his most serious offences’[36]. The further contention of the Respondent is that his
now – claimed state of rehabilitation is yet to be tested in the general community where illicit drugs will be more freely available to him than in either prison or immigration detention;
·the Respondent says there is a temporal difficulty with the Applicant’s evidence about re - commencing his drug use as a result of his father’s death. The Respondent says that this attribution fails to explain the significant majority of his offending that occurred prior to his father’s death which occurred in 2023. By 2023, the Applicant had already committed all of his offending; and
·the Applicant’s claim that his daughter, mother and sister represent protective factors against his recidivist risk should be received cautiously and should be tempered against the reality that each of them were present and around the Applicant during his time in the community when he committed those offences.
[34] R4, p 7 [32].
[35] R4, p 7 [32].
[36] R4, p 7 [33].
As a result of the above factors, the Respondent urges the Tribunal to attribute a heavy level of weight to this Primary Consideration 1 in favour of affirming the Decision Under Review.
The state of the evidence around the Applicant’s engagement with rehabilitation
Prior to his most recent incarceration, the evidence is suggestive of genuine efforts made by the Applicant to secure a residential – type rehabilitation at Way Back House. There is also evidence of an intention that the Applicant be referred to the Drug Court. The relevant New South Wales Department of Corrective Services case note report indicates that on
[37] R1, p 120
11 July 2023, the Applicant was found to be ‘eligible & appropriate for Drug Court’ but that this referral could not be made because he was ‘out of catchment area’ for such a referral.[37]
The evidence also makes it clear that the Applicant did, when incarcerated, participate in a number of courses. They are outlined in the Applicant’s SFIC. During his oral evidence at the instant hearing, the Applicant spoke of his completion of the SMART Recovery program conducted by Odyssey House. He also spoke of how he proposed to manage any cravings he may experience for any illicit substance if returned to the community. The following, albeit lengthy, portion of transcript indicates that the Applicant (1) has had a demonstrable level of past involvement with rehabilitation; (2) is open and willing (indeed likely) to re-engage with rehabilitation if returned to the community; and (3) has come to realise and understand the vital importance of him maintaining a continued involvement with rehabilitation:
‘SENIOR MEMBER KIRK: Did you say you did SMART Recovery in jail?
APPLICANT: In John Maroney. Yes.
SENIOR MEMBER KIRK: Yes?
APPLICANT: But I want to do it again.
SENIOR MEMBER KIRK: Do it again. Okay?
APPLICANT: Maybe it’s different.
SENIOR MEMBER KIRK: At Villawood?
APPLICANT: M’mm.
SENIOR MEMBER KIRK: Okay. Thank you.
MS WILFORD: Is that SMART Recovery the one that’s run by Odyssey House?
APPLICANT: Yes.
MS WILFORD: Perfect. Okay. Do you remember what some of the things they taught you were from that SMART Recovery class?
APPLICANT: They taught me how to – how to avoid – or what’s the right thing to do when I’m craving or I feel like want to smoke, want to go for drugs. They teach me how to distract myself or focus on something else.
MS WILFORD: So distracting yourself is one form of, I guess, protective barrier for dealing with cravings?
APPLICANT: Yes.
MS WILFORD: Okay?
APPLICANT: Yes. If I feel like I’m craving, like, I focus with something and I make myself busy.
MS WILFORD: When you say with the cravings, do you still have cravings?
APPLICANT: I'm not really sure, because I’ve been in jail for a year and now four months or three months in Villawood, so. But I still really want to go to a program or rehab when I get out.
MS WILFORD: So other than the course you’re currently – other than the SMART Recovery course that you’re currently planning in enrolling in, when you’re in the community, do you have a program that you would be enrolled in or have you had a look at what programs might be available?
APPLICANT: Yes. I called the Odyssey.
MS WILFORD: Odyssey House?
APPLICANT: Yes. I called them already, but they told me that I have to see – I cannot – they cannot do anything if – while I’m still in Villawood. So the only thing that they can do is, when I get out, or if I get out, I have to…
MS WILFORD: When did you talk to them?
APPLICANT: Last week.
MS WILFORD: Last week. So they said that they couldn’t do anything until you’re out. Did they or do you know what – how long it might take or what might be involved once you are out to engage with them?
APPLICANT: I can go there straightaway, but, at the moment, what they do, they will give me a link for, like, internet, do the program in internet. Yes.
MS WILFORD: Is that different to the SMART Recovery course?
APPLICANT: I think, yes. Yes, I think it’s different. Yes.
MS WILFORD: So the link they give you would be something in the – between you being in the community and before you (indistinct)?
APPLICANT: Yes. Like, they – like, they preparing – they preparing me, so when I get out, and then go to see them.
MS WILFORD: So it is your intent to, yes, enrol in Odyssey House and undertake rehabilitation with them when you’re - - -?
APPLICANT: Yes. I don’t – I don't want to do anything (indistinct) first.
MS WILFORD: Have you done a program like the one that’s offered by Odyssey House before?
APPLICANT: Not yet, because I’m – actually, I was – when I was John Maroney, it’s called ‘Way Back’.
MS WILFORD: Yes?
APPLICANT: Yes, and I apply for rehabilitation. And then I was accepted, and then I got – they give me a bed. But the problem, the judge couldn’t give me that sentence because I’m – I’ve been in jail too long already.’[38]
[38] Transcript, p 25, lines 36-47; p 26; p 27, lines 1-7.
Remorse

There is a historicity to the Applicant’s stated feelings of remorse for, in particular, his most recent offending. When being sentenced in the Hornsby Local Court in July 2023, his legal representative included the following narrative in her submissions on sentencing:
‘Now he [the Applicant] was telling me [his representative in Hornsby Local Court] this, not to make anyone kind of feel sorry for him, but just to explain the pressure he was under even though he says that’s still no excuse for the offending. He is remorseful. I mean when he’s off the drugs he is remorseful, he is always extremely polite. I think I was speaking to one of the police today who just saying he is the most polite you know person they see.’[39]
[39] R3, p 40, lines 28-33.
His SFIC makes the broad assertion that ‘The Applicant has demonstrated genuine remorse for his offending behaviour. On the evidence he has apologised for his offending in various submissions.’[40] This apologetic tone had its echo in his oral evidence to the instant hearing given both in-chief and cross-examination. In-chief, the Applicant said the following:
‘MS MAMAROT: Thank you. So I’ll just ask you about the criminal record part of that statement that is in front of you. I want you to tell the tribunal how do feel about the victims of your offending?
INTERPRETER: I’m asking for forgiveness for what I have done and I feel bad conscience for what I have done to them.
MS MAMAROT: Can you explain what you mean by ‘bad conscience’?
INTERPRETER: Yes. I should be – I feel bad. I am remorseful for what I’ve done.
MS MAMAROT: Thank you. Why should the tribunal believe that you won’t reoffend if given another chance?
INTERPRETER: Because I don't want to be taken away from my daughter and my mum, and I want to cleanse or to do something, to rehabilitate against what I have done.’[41]
[40] A2, p 6 [30].
[41] Transcript, p 7, lines 17-34.
In cross-examination, the following exchange transpired between the Applicant and the Respondent’s representative:
‘MS WILFORD: I’d like to just talk about your criminal offending for a bit, but I might just start with, you mentioned in your evidence-in-chief that you felt bad for what you had done; you feel remorseful. Can you tell the tribunal what it is that you think you have done and what you feel remorse for?
APPLICANT: When I – when the people get affected, like, emotionally, and then I’m thinking that, ‘What if this happened to my family?’ But because I was under influence of drugs, I never think the right thing, but I just realise – when things happen, I just realise that I’ve done worse thing. I really feel bad for what I did to the people that – the people who (language other than English spoken).
INTERPRETER: To the people that I did wrong. They had some – emotionally, they were also hurt. So I am asking apologies for what it did.’[42]
[42] Transcript, p 28, lines 1-12.
To my mind, acceptance and remorse of one’s offending can often be gleaned from the attitude and approach an offender takes towards how their offending is dealt with by a sentencing court. All too often, offenders adopt unsustainable positions and vacuous explanations for their conduct, knowing very well that the evidence indicates otherwise. That is not the case with this Applicant. The record of how his most recent offences proceeded through the Hornsby Local Court is, in my respectful view, indicative of an offender who does carry remorse for what he has done.
At pages 170-171 of the Exhibit R1, there is to be found a list of some 13 offences due for processing through the Hornsby Local Court on 18 July 2023 . Nine offences are marked with the nomenclature ‘PG’ which denotes ‘pleaded guilty’. The remaining four charges are noted with ‘WND’ which denotes ‘withdrawn’. This desire apparent desire to put his offending behind him and to have it promptly dealt with led the sentencing Magistrate at the Hornsby Local Court in July 2023 to say ‘…I also accept that you are prepared to do something now…’[43]
[43] R3, p 42.
Protective factors
First, there is the availability of remunerative employment for the Applicant if returned to the community. There is evidence before the Tribunal of his work as a high-end and well qualified car detailer. His was not the role of merely washing a car with a wet sponge and a bucket. He acquired Certificate level qualifications which involved him actually ‘detailing’ motor vehicles so that they were acceptably presentable for sale. His services were clearly valued and in demand because he commenced car detailing with Mazda, then Toyota, then Mercedes and, ultimately, the luxury sports car manufacturer, Ferrari. These latter vehicles carry a very significant value and one can fully appreciate the vital importance in, removing an otherwise superficial scratch or mark from a car panel prior to a purchaser paying a significant amount of money to buy that car. Before getting into car detailing, the Applicant had also worked as a kitchenhand in the Aged Care sector and, indeed, obtaining Certificate level qualifications in food handling as part of that employment.
Second, the Applicant does have a close and protective family around him in the form of his sister, his 17-year-old daughter and his mother. Later in these Reasons I will recount the extent of his ties with those family members and at least one other person. True it may be that the Applicant nevertheless committed offences in the community while his family was around him and there is the resulting possibility that he may do so again. But I am satisfied about the convincing tone in his evidence that he has reached a realisation that his past offending has isolated him from them and that he does not want to experience that isolation again.
Third, I am also satisfied that a similar realisation has been reached by the Applicant in terms of the dreadful outcomes he has experienced because of his illicit substance abuse. He now realises the vital importance of getting his drug issues under some kind of remedial management and control. The Respondent might say that his capacity to resist the cravings predisposing him to illicit substance abuse remains to be tested in the general community. As against that there is the reality that he has no history of involvement with illicit drugs in either prison or immigration detention. He was regarded as a polite and respectful detainee who diligently completed the tasks given to him and who was thought to ‘…mostly do the right thing with [prison] officers.’[44]
[44] A2, p 7 [32].
Other evidence about recidivist risk
It was contended on behalf of the Applicant that he now represents a recidivist risk that is low and that such risk is certainly not one which should now be found to be unacceptable. I think this contention has traction by reference to specific documents in the evidence. First, there is the sentencing assessment report made contemporaneously with the Applicant’s sentencing appearance at the Hornsby Local Court in July 2023. The relevant Community Corrections Officer formed the view that, following application of the LSI-R[45] testing methodology, the Applicant was assessed at a medium-low risk of re-committing the more serious of the offences that came before the Hornsby Local Court in July 2023. Further, this report noted that the Applicant ‘…expressed a motivation to engage in a residential rehabilitation post release quoting “I want to help myself”’[46]. This report goes on to make the not insignificant observation that the Applicant’s ‘most recent period of supervision was by way of two Intensive Correction Orders (ICO’s), but was also suspended due to his low risk rating’. [My emphasis]
[45] Denoting, ‘Level of Service Inventory-Revised’.
[46] R1, p 140.
Second, in the event of the Applicant’s return to the community, he will remain under the supervision of New South Wales Corrective Services because he will remain on parole for a further period of a 14 months. The sentencing remarks[47] make it clear that his two-and-a-half-year head sentence imposed in July 2023 operate as follows:
·the sentence commenced on 7 February 2023 when the Applicant voluntarily went into actual custody;
·he became eligible for release from prison on 6 February 2024;
·from his release he was then on parole for some 15 months, meaning he will complete his time on parole in or about 6 August 2025.[48]
[47] R3, pp 42-43.
[48] R1, p 136.
The relevant New South Wales Department of Corrective Services case note actually records the relevant staff member explaining the terms of the Parole Order to the Applicant. The relevant case note appears in these terms:
‘……
Date:24/01/2024
……
Review:
Interview with Ryan who is currently housed in Area 4 of Parklea Correctional Centre. Ryan was polite and cooperative throughout.
Case plan discussed - I explained to Ryan that should he be released into the community, he will be referred to a local AOD service for assessment and treatment, submit to random drug testing, and referral to local GP to undertake assessment and obtain a MHCP. Additionally, contact will be maintained with services and his mother to monitor his progress. Ryan verbalised his understanding and expressed no concerns.
Identify:
Explain and sign into Parole Order.
Provide reporting arrangements and have Ryan sign.
A.1 Getting out on Parole completed by way of conversation to discuss supervision expectations and clarify the role of the Officer.
Describe:
Statutory Parole Order, commencing 06/02/2024 and expiring 06/08/2025, including standard conditions, explained to Ryan. He confirmed his understanding and signed the Order.
I advised Ryan that should he be released into the community at any time prior to the expiration date of his order, being 06/08/2025, he will be required to report to the nearest community corrections office within 24 hours of release. Ryan confirmed his understanding and signed his RA's.
A.1 Getting out on Parole ? I clarified with Ryan that being on parole will mean he will to abide by the conditions of his parole. I encouraged him to maintain an open and honest relationship with his Officer.
Ryan expressed that he is unsure of the role of his Officer so it was explained to him that their role is to monitor his compliance with the conditions of his Order whilst addressing his offending behaviour through referrals to interventions and ongoing discussion. Ryan confirmed his understanding.
The aim of the interview was met…’[49]
[My emphasis and underlining]
[49] R1, p 136.
Findings about recidivist risk
I have had regard to factors in the evidence referrable to the Applicant’s recidivist risk. These are my findings about the risk he now represents:
·willingness to engage in rehabilitation: the Applicant provided convincing evidence about a determined effort to fulsomely engage with a rehabilitative process if returned to the community. He has identified at least one facility with capacity to provide him with residential-type treatment. This willingness had its progenitor in his completion of multiple rehabilitative courses during his period of incarceration;
·remorse: there is a historicity to the remorse he now expresses for his unlawful conduct. It was apparent in the submissions made by his legal representative in the sentencing hearing in July 2023. It had it’s echo in both his evidence-in-chief and in cross-examination at the instant hearing. It can also be found in his willingness to plead guilty to his offending at an early stage and to not otherwise adopt a vacuous and unsustainable position about what he has done;
·protective factors: the Applicant was not delinquent while in the community. He is a well-regarded car detailer and preparer. He has also done remunerative work in the Aged Care sector. There is nothing in the evidence to suggest he would not be able to return to these roles now if returned to the community. I repeat my satisfaction about the Applicant having reached a point of realisation that further offending will prolong his isolation from his immediate family members with all of whom he is very close. I repeat my similar state of satisfaction about his realisation that the time has come for him to get his drug issues well and truly under control as a man with work and family responsibilities who is now into his middle age; and
·other evidence: it is not possible (or safe) to ignore or devalue, firstly, the sentencing assessment report which assessed the Applicant’s recidivist risk as ‘medium-low’. This report also noted the Applicant’s ‘expressed motivation’ to become engaged in serious rehabilitation. Secondly, there is the equally significant reality that the Applicant will, if returned to the community now, be subject to a supervised parole order until August 2025. Significantly, this will involve him being referred to a local alcohol and drug service for assessment and treatment. It will compel him to submit to random drug testing. It will involve him being referred to a local general practitioner to undertake an assessment and to obtain a Mental Health Care Plan. Equally significant is the reality that the New South Wales Department of Corrective Services will oversee the Applicant’s engagement with rehabilitative services and will otherwise engage with his mother to monitor his progress.
Assessment of recidivist risk
I am of the view that following distillation of the evidence into the abovementioned findings, this Applicant can now be found to represent a medium-low risk of recommitting his more serious offences that came before the Hornsby Local Court for sentencing in July 2023. This finding is consistent with the New South Wales Department of Corrective Services

pre-sentencing assessment conducted contemporaneously with that sentencing hearing. This risk assessment is, in my respectful view, fortified by the reality of the Applicant being subject to supervised parole (and its attendant conditions) until 6 August 2025.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a
non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.
Conclusion for Primary Consideration 1:
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found the nature and seriousness of the Applicant’s conduct to date has been serious;
(b)I have found that in the event of recommission of this Applicant’s property – derived offending, the nature of the harm it would represent to its victims would range from psychological harm to measurably material (i.e. financial) harm;
(c)I have found the Applicant now represents a medium-low level of recidivist risk.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a strong, but not determinative level of weight towards this Tribunal affirming the Decision Under Review.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Both parties agree that this Primary Consideration 2 is not relevant to the instant determination and that it should be put to one side with an allocation of neutral weight to it.[50] I agree with the parties and will allocate neutral weight to this Primary Consideration 2.
[50] A2, p 8 [38]-[39]; R4, p 7 [37].
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction states:
(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.
The subsequent sub-paragraphs 8.3(2) and 8.3(3) of the Direction provide guidance to a decision-maker in how to determine the weight allocable to a person’s ties to his child/ren and social links wherein the child/ren and the social links of the person are Australian citizens or permanent Australian residents and/or who have a right to remain in Australia indefinitely.
In the assessment of any other ties a person may have in Australia, paragraph 8.3(4) of the Direction requires a decision-maker to have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i)     considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
It is plain from the evidence that the Applicant arrived here as an adult and did not spend his formative years in this country. He came here as a 21-year-old in 2002. In terms of departures/arrivals he spent just over four years outside of Australia since his arrival. But in overall terms he has spent about 43 percent of his life here. This is clearly suggestive of him having spent enough time in Australia to now be able to say that he has close ties with people here. He clearly has such ties and they are to be found in the relationship he has with (1) his mother; (2) his sister; and (3) his 17-year-old daughter. His Personal Circumstances Form (‘PCF’) also talks about him having a cousin, aunt and grandparents in Australia as well as three nieces/nephews.[51]
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
[51] R3, p 74.
It is first necessary to identity the Applicant’s immediate family members and extended family members in Australia who are citizens, permanent residents or people who have a right to remain in Australia indefinitely. As mentioned, the Applicant has the following immediate family members in Australia:
·his mother, Ms Susana Brondial: she provided both oral and written evidence to the instant proceeding. In her latest written statutory declaration made on 29 May 2024 she says ‘My son and I are extremely close to each other, and I have been his only support system here.’[52] She contemplates the Applicant’s removal and says ‘The thought of my son being taken away form [sic] me and being deported back to the Philippines is one that is very hard, and I can’t imagine. It is an extremely heavy thought.’[53] She refers to the Applicant’s Visa cancellation process and says ‘It has caused a great amount of distress and depression to me. I would never have imagined my so [sic] to have fallen into this problem.’[54]
[52] A1, p 12 [46].
[53] A1, p 12 [45].
[54] A1, p 12 [44].
Her oral evidence contained similar sentiments. She told the hearing that ‘I am the one helping him. I am the one attend the court. I am the one everything. So it’s hard. My heart is breaking, but what can I do? I am the mum. No one else is going to support him….’[55] And further in her oral evidence she was asked whether in the event of the Applicant’s removal to the Philippines, she would be able to be in contact with him. She replied in these terms:
‘Yes, I’ll be in contact with him, but it’s very hard. It’s very hard to think about, because, since I came in Australia, I brought them here, I didn’t imagine that they’re going to be (indistinct) to us, because we’re family. And as a mum, it’s very – I can’t accept. It’s my, like, frustration. Like, I don’t – can’t imagine going to be away from us.’[56]
·his sister, Ms Rossann Camarse: she is the younger sibling of the Applicant. She did not provide oral evidence but her written statement is dated 6 September 2023 and relevantly appears in the material. She describes the Applicant as a ‘…good and kind person. He has always been there for my mum and I.’[57] She says that she did not have a father figure growing up in Australia and that the Applicant largely took up on that role. She says ‘Our entire family is dedicated to supporting my brother and any means necessary for his complete rehabilitation.’[58] She makes reference to the Applicant’s relationship with his daughter, Child J and notes that ‘they have a very close and loving relationship’[59]. Her statement contains these additional words: ‘Losing my brother would be heartbreaking, knowing that he will be apart from us is unthinkable. It has always been my mum, brother, my niece [i.e. Child J] and I. Please don’t take him away from us.’[60];
·his daughter, Child J: Child J was born in September 2006. She will be turning 18 years of age this year.[61] She has provided a written statement and, understandably, given her age, did not provide oral evidence to the instant hearing. Her written statement relevantly appears in the material.[62] She describes herself as being ‘…emotionally dependant on [the Applicant] as his daughter’[63]. It is worth the quoting the balance of Child J’s statement in full:
‘If he were to be deported, my mental wellbeing would be greatly impacted as he has been my number 1 supporter through the changes I have experienced while growing up. He had encouraged me to pursue activities I had thought of doing throughout my childhood and if it wasn't for him encouraging me, I wouldn't have become the person I am today. He has a great presence in the support of my current preparation for my exams and for my preparation for the HSC next year. Without him, I would be heartbroken and would struggle to find the motivation to continue my studies knowing my dad is too far away for me to visit him every chance I get. Again, in this letter, I am begging for the reconsideration of my dad's revocation as his daughter for the sake of my wellbeing and on behalf of my family. Please give my dad a chance to change.
Sincerely,
[Child J]’[64]
[55] Transcript, p 44, lines 31-33.
[56] Transcript, p 48, lines 10-14.
[57] R3, p 103.
[58] R3, p 103.
[59] R3, p 103.
[60] R3, p 103.
[61] R3, p 102.
[62] R3, p 101.
[63] R3, p 101.
[64] R3, p 104.

I have had regard to the written and oral evidence referable to the three abovementioned immediate family members in Australia. I am satisfied that the abovementioned three immediate family members of the Applicant would be adversely impacted in the event of his removal to the Philippines. This finding is subject to this following caveat: for the interests of these immediate family members to be taken into account, each of them must be Australian citizens, Australian permanent residents or persons who have a right to remain in Australia indefinitely. I will assume that each of these immediate family members fall into at least one of the qualifying categories contained in paragraph 8.3(1) of the Direction. I am of the view that the Applicant’s ties with the abovementioned immediate family members in Australia are very strong and that those ties militate in favour of the allocation of a very strong level of weight in favour of the Applicant pursuant to this Primary Consideration 3.
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to the Applicant’s child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
I interpret this component of Primary Consideration 3 to require me to determine whether more weight should be allocated to the Applicant’s ties to Australia in circumstances where his biological or stepchildren are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely. I will make the following presumptions: (1) the term ‘child/ren’ in this particular paragraph includes both biological and stepchildren and that (2) it does not include nieces, nephews and other children with whom the Applicant may have ties in Australia.
I again refer to Child J and I form the view that she does comprise a child of the Applicant falling within the auspices of paragraph 8.3(2). She was born here and is thus an Australian citizen by birth. Confusingly, Child J falls within the auspices of paragraph 8.3(1) because she must surely be found to be an immediate family member of the Applicant. But, at the same time, she also falls within the auspices of paragraph 8.3(2) as his child. Out of an abundance of caution, I will refer to the High Court authority of Ismail[65] and I will find that it is not ‘repetitious weighing’ to take the interests of Child J into account for the purposes of this paragraph 8.3(2) plus 8.3(1) and later, for the purposes of paragraph 8.4 of the Direction.
[65] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2.
For the immediate purposes of this paragraph 8.3(2), I am satisfied that the Applicant’s ties with Child J militate in favour of the allocation of a very strong level of weight in favour of the Applicant pursuant to this Primary Consideration 3.
Paragraph 8.3(3) Strength, nature, and duration of ties with any family or social links generally
This paragraph looks at the strength, nature and duration of the extent of any ties the Applicant may have with (1) other family members; or (2) social contacts/links in Australia. The limiting proviso on this inquiry is that these two categories of people with whom the Applicant may have ties must be Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely. I have earlier referred to additional family members in the form of an uncle/aunt/nieces/nephews. None of them have provided oral or written evidence to the instant hearing.
However, the Applicant’s ex-wife has provided a written statement. She did not provide oral evidence to the instant hearing. Her name is Ms Aisa Contreras Camarce. She is an Australian citizen[66] and her written statement relevantly appears in the material.[67] It is worth quoting her statement in full:
‘To Whom It May Concern,
My name is Aisa Camarce, residing at [ address redacted],an ex-wife of Ryan Camarse [the Applicant] who is currently a detainee. I would like to request a reconsideration of his visa status.
Our daughter [Child J] is emotionally and physically dependent on her father Ryan Camarse. It would be the biggest negative impact to her if her dad were to be deported, especially now that she's currently preparing for her HSC. I would not be asking this if I don't believe that Ryan plays an important role in our daughter's future and also Ryan has promised to our daughter not to engage in any risk that would jeopardise her studies and wellbeing because of him.
Thank you so much for your kind consideration.
Respectfully Yours,
Aisa Camarce’[68]
[66] R3, p 99.
[67] R3, p 98.
[68] R3, p 98.
For the purposes of this paragraph 8.3(3), I am satisfied that the Applicant’s ties with his ex-wife, particularly in the circumstances of their co-parenting responsibilities for Child J, do militate in favour of the allocation of a moderately strong level of weight in favour of the Applicant pursuant to this Primary Consideration 3.
Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here
This component of Primary Consideration 3 requires me to look at the length of time the Applicant has resided in the Australian community and to take account of the following three elements:
(i)whether the Applicant has been ordinarily resident here during his formative years?[69] The Applicant came here in 2002 as a 21-year-old and has spent something like 43 percent of his life in this country. I am therefore satisfied that he has not been ordinarily resident in Australia during his formative years. This component of paragraph 8.3(4) of the Direction does not assist the Applicant because he did not spend his formative years here;
(ii)whether the Applicant has positively contributed to the Australian community during his time here?[70] The Applicant has held position of remunerative employment in the aged care sector from 2003 to 2011. He then worked as a car detailer and presenter from 2013-2016.[71] In terms of community contributions, he believes he has made community contributions to the extent of assisting Aged Care residences to feel ‘happy’ while in care. He also thinks his work as a car detailer/preparer assisted car buyers to resolve problems with their vehicles.[72] The Applicant has therefore contributed to the Australian community through his employment and, to an extent, his community contributions. This means that this component of paragraph 8.3(4) of the Direction affords a strong level of weight towards a finding about the strength of his ties to Australia having regard to the nature and extent of his contributions during the time he has spent here;
(iii)can the weight allocable to the strength of the Applicant’s ties to Australia based on the length of time he has spent in the Australian community be lessened because (1) he did not spend his formative years here and (2) he began offending soon after arriving here?[73] With reference to the first question, I have already found that he has not spent his formative years here. With reference to the second question, the Applicant’s movement history confirms he arrived here in 2002 as a 21-year-old. His first conviction in Australia occurred in September 2011. A period of nine years post-arrival is not ‘soon after arriving in Australia.’ The weight allocable to the strength of the Applicant’s ties to Australia can only be moderately impugned pursuant to this specific sub-paragraph 8.3(4)(a)(iii) of the Direction due to him not having spent his formative years here. But this finding is counterbalanced by the reality that he did not begin offending soon after arriving here.
[69] Paragraph 8.3(4)(a)(i) of the Direction.
[70] Paragraph 8.3(4)(a)(ii) of the Direction.
[71] R4, p 9 [46].
[72] R3, p 77.
[73] Paragraph 8.3(4)(a)(iii) of the Direction.
Accordingly, I am of the view (and I find) that based on my analysis of the evidence around subparagraphs 8.3(4)(a)(i)-(iii) of the Direction, a strong level of weight is allocable to this paragraph 8.3(4) in favour of the Applicant.
Conclusion: Primary Consideration 3
I have referred to the four relevant components of this Primary Consideration 3. I am of the view–after having analysed the evidence relevant to each of those four components – that the totality of the evidence points to a very strong level of weight being allocable to this Primary Consideration 3 in favour of a finding that this Tribunal should restore the Applicant’s Visa status to remain here.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
This Primary Consideration requires a decision-maker to consider what impact a decision to refuse or not revoke cancellation of a visa will have on children who are and will continue to be under the age of 18 years of age at the time of the decision.[74] The Direction further requires that the best interests of each child must be considered individually if there are more than one minor child/ren identified.
[74] Paragraphs 8.4(1) and 8.4(2) of the Direction.
In assessing the best interests of each child/ren, a decision-maker is required to take into account:[75]
[75] Paragraph 8.4(4) of the Direction.
(a)the nature and 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);
(b)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;
(c)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;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Identification of relevant minor child/ren
There is no dispute between the parties that the only relevant minor child relevant to this Primary Consideration 4 is the abovementioned Child J. While there is also reference in the material to ‘nieces/nephews’, the evidence is predominantly silent about the extent of any parental or other relationship the Applicant with them. The material also contains reference to the Applicant having three other non-biological children living in the Philippines. While material discloses he is in contact with those three children, they are not ‘children in Australia’ and thus their interests cannot be taken into considerations for present purposes.[76]
[76] See generally, Transcript, p 14, lines 24-42.
The Applicant’s evidence extensively canvasses the extent of his relationship with Child J. In his most recent statutory declaration made on 28 May 2024, he describes his relationship with her in these terms:
’12. On the [date of birth redacted] Aisa and I had our only daughter [Child J]. She was born in the Royal North Shore Hospital at St Leonards, and I was present at the birth.
13. Aisa and I lived with [Child J] with my mother until we separated around 2010. She later moved out, however, my daughter and I continued to live my mother. My daughter lived with me on a permanent basis as her mother had a partner following the divorce.
14. [Child J] attended Chatswood Primary School and Chatswood High School. I have always lived with [Child J] except for when I was overseas and in jail.
15. Both Aisa and I raised [Child J] alongside my mother. However, after Aisa started a relationship with another man, I was mainly responsible for [Child J]. My mother helped me raise my daughter and plays a significant role in her life as well.
16. I am very close to my daughter, and she is closer to me than she is to her mother as I was mainly responsible for her. When we all lived together, I would take her to school, drop her of to her trips, cook her dinner, wash her clothes etc. as I was less strict than her mother and grandmother, if she wanted to go somewhere she would seek permission from me rather than them.
17. My daughter is very sweet, funny and sports. She loves basketball, volleyball, and soccer. I have supporter [sic] her during her sporting activities. When she was 16 years old, she suffered a knee injury from a sport match. During this time, I took care of her. my mother and her mother also assisted I the care. My mother would often cook for her, and her mother would contribute to her bank allowance. Generally, we love her and have spoiled her very much.
18. [Child J] became aware of my drug use around 2017 following my arrest. She was very sad and disappointed. However, it did not affect my relationship with her. she continued to be extremely supportive.
19. Prior to my detention in 2023 at John Moroney Correctional Centre, I had a very strong relationship with my daughter. She lived with my mother and I and I was her primary carer and she was my main responsibility. Following my detention, she always visited me with my mother. Last year she started visiting me by herself.
20. At John Moroney I had an iPad which allowed me to maintain this relationship even whilst being in detention and I speak to her two times a day, once after school and before she sleeps.
21. When I was sentenced in Parklea Correctional Centre Area 4, I was allowed to use my phone the whole night. During this time, I would speak to her.
22. Once I was transferred to Villawood Detention Centre I was allowed to have access to my phone. This allowed to further maintain my relationship with her. I message her in the morning and call her after school and at night. As she is really busy at the moment with HSC school work, I may miss a call. If I do miss a call, I make up for it at night. She often calls me if she wants to seek permission to do something. She visits me at Villawood every 2 weeks with my mother.
23. I was primarily responsible for my daughter and her number one support. Whilst her mother and grandmother have also supporter her, she is closest to me as I have always supported her with everything she wants to do. Her mother and grandmother are stricter on her whereas I am more lenient. The way I love and support her is different to the love and support of her mother and grandmother. They often placed limitations on her which I did not for this reason I am her first point of communication.
24. My daughter will be greatly impacted by not having me besides her all the time. She is currently completing HSC and is moving on to an important phase of her life. She will have a boyfriend soon and she needs to be to be there to support her. I am her greatest support and every time she is facing problems or needs anything, she contacts me.’[77]
[77] A1, pp 3-4.
His oral evidence at the instant hearing contained similar sentiments. In cross-examination, the following transpired between the Applicant and the Respondent’s representative:
‘MS WILFORD: Are you currently in a relationship?
APPLICANT: No.
MS WILFORD: Is the last relationship you were in, was that with Eileen or was that with?
APPLICANT: With [Aisa].
MS WILFORD: With [Aisa]. What is your relationship like with [Aisa] now?
APPLICANT: Yes, we’re still – we’re still friends – close friends. Yes.
MS WILFORD: You mentioned that your – so your parenting arrangements with you and [Aisa], you would have a discussion?
APPLICANT: Yes.
MS WILFORD: and you would decide who would have – or who’d be looking after [Child J] during the week. Is that correct?
APPLICANT: Yes.
MS WILFORD: So there was never any formal custody arrangement in place or any legal document that said, you know, for example, you have her three days, [Aisa] has her four days?
APPLICANT: Yes, but I think – I think my daughter decide to stay with me, like, because, when (language other than English spoken).
INTERPRETER: Since she started staying with me, [Child J] decided to stay with me, and she can only visit her mum when she – whenever she likes. Yes, if the mum asks her to visit her.
MS WILFORD: So she was living with you every day?
APPLICANT: Yes.
MS WILFORD: When did that start? When did she start living with you every day?
APPLICANT: Like, when she – when she got married. ’12. 2012, something.
MS WILFORD: So when your ex-partner got remarried?
APPLICANT: Yes.
MS WILFORD: That’s when your daughter started living with you full-time?
APPLICANT: Yes.
MS WILFORD: Okay.
SENIOR MEMBER KIRK: So what year was that?
APPLICANT: ’12 or ’13. I can't remember the exact.
SENIOR MEMBER KIRK: Sorry, just to clarify, so you said there was no formal custody arrangement between you and your former partner [Aisa]. So there was no court order or anything?
APPLICANT: No.
SENIOR MEMBER KIRK: It was just decided between the two of you?
APPLICANT: Yes. I think my daughter, yes, has …
SENIOR MEMBER KIRK: So she decided where she wanted to go?
APPLICANT: Yes, because, at first, she used to – she used to go to her mum every weekend, but, suddenly, she just go there if her mum asks her to come.
SENIOR MEMBER KIRK: She would've been very young then?
APPLICANT: Yes. She was six. I think she was six years old when she stay with me.
SENIOR MEMBER KIRK: Okay. Thanks.
MS WILFORD: When did your relationship with her mum – or when did that relationship finish?
APPLICANT: Around ’10. 2010.’[78]
[78] Transcript, p 15, lines 19-47; p 16 lines 1-26.
In short order then it can be found that prior to his removal from the community, the Applicant acted as primary care provider for Child J and that this has been the case for the last 10-11 years since Child J was six years old. It is therefore safe to assume that the Applicant would assume a similar parental role if returned to the community now. There is certainly nothing from Child J’s biological mother to contradict the Applicant’s evidence such as to cause this Tribunal to conclude otherwise.
Application of factors at paragraph 8.4(4) of the Direction to Child J
Sub-paragraph (a): there is a palpable nature and durability to the relationship between the Applicant and Child J. He has been her primary carer since she was six and she is presently now 17 years of age. The relationship has been parental and, indeed, one of primary parental care. Despite the absence of any legal instrument specifically governing the parenting arrangements for Child J the Family Court of Australia was, as at 22 April 2010, satisfied that ‘Proper arrangements….have been made for the care, welfare and development of ….Child J’.[79] As noted in the Applicant’s evidence, he commenced playing a primary parental role in or about 2011-2012 when his ex-wife re-partnered. I am satisfied that this sub-paragraph militates in favour of the allocation of a very strong level of weight in favour of the Applicant’s Visa status to remain in Australia being restored to him.
[79] R3, p 100.
Sub-paragraph (b): it can be safely found that there exists a very strong likelihood that the Applicant is likely to resume his primary parental role in Child J’s life upon a return to the community. The tempering element to this finding that Child J will turn 18 in September this year. But that is not to suggest that his parental involvement with Child J will cease at that point. Quite the contrary. I am satisfied that this sub-paragraph militates in favour of the allocation of a strong level of weight in favour of the Applicant’s Visa status to remain in Australia being restored to him.

Sub-paragraph (c): there is nothing in the material about any impact on Child J as a result of the Applicant’s past conduct nor about the extent to which she would be impacted were he to re-offend. She has been clearly aware of his difficulties with illicit drugs since around 2017. The Applicant tells us ‘She was very sad and disappointed. However, it did not affect my relationship with her. She continued to be extremely positive’.[80] I think the safest course is to put this sub-paragraph to one side and render it neutral for present purposes.
[80] A1, p 3 [18].
Sub-paragraph (d): I have earlier referred to Child J’s written statement and to the emotive nature of Child J’s evidence in the event of a permanent separation from the Applicant. It is plain that she would be emotionally devastated in the event of his removal to Philippines. Given his primary parenting role in her life since she was six years of age it is somewhat trite to suggest (or find) that these feelings of devastation in Child J would somehow be ameliorated by his capacity to speak with her either on the telephone or by Microsoft Teams. I will allocate strong weight to this sub-paragraph due to the devastating impact on Child J in the event of the Applicant’s removal.
Sub-paragraph (e): the reality is that during his removal from the community Child J has been looked after by the Applicant’s mother and her biological mother. The unavoidable finding is that there are persons who have fulfilled a parental role while the Applicant has been in prison and then immigration detention. However, I have found that he will resume a primary parental role in Child J’s life if returned to the community and I thus do not think it safe to allow this sub-paragraph to unduly moderate the weight ultimately allocable to this Primary Consideration 4 in favour of the Applicant and I will not do so.
Sub-paragraph (f): we clearly know the views of Child J. At 17 years of age she is old enough and mature enough to express those views which should be accepted without equivocation. I am satisfied that this sub-paragraph militates in favour of the allocation of a very strong level of weight in favour of the Applicant’s Visa status to remain in Australia being restored to him.
Sub-paragraphs 8.4(4)(g) and (h): the material contains no evidence referrable to either of these sub-paragraphs both of which should be put to one side and rendered neutral for present purposes.
Conclusion: Primary Consideration 4
I have assessed and allocated weight to the best interests of Child J by reference to the evidence and how that evidence speaks to each of the relevant

sub-paragraphs at 8.4(4) of the Direction. Having regard to those respective weights I have allocated to the relevant sub-paragraphs of 8.4(4) of the Direction, I am led to a finding that this Primary Consideration 4 must be found to be of very strong weight in favour of revocation of the mandatory cancellation of the Applicant’s Visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[81] The Direction further explains:
‘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 [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[82]
[81] Paragraph 8.5(3) of the Direction.
[82] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
1The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country which is evidenced by a significant number of breaches of the Australian criminal law. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, 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 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:[83]
(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.
[83] Paragraph 8.5(2) of the Direction.
The Applicant’s criminal history does not contain any convictions falling within any of the categorised auspices of paragraph 8.5(2) of the Direction. Thus, while the normative expectation in paragraph 8.5(1) may be met, this finding is not augmented by the language of paragraph 8.5(2) because none of his offending involves conduct contemplated by
sub-paragraphs (a)-(f) (inclusive) of paragraph 8.5(2) of the Direction. Therefore, it would be unsafe to make a finding that the Australian community-by virtue of the nature of the Applicant’s offending history-would, pursuant to paragraph 8.5(2) of the Direction, expect the Australian Government can and should refuse to set aside the mandatory cancellation of his Visa.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[84]
(c)Australia will generally afford a higher level of tolerance towards 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;[85]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;[86]
(e)the nature of a 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 a visa outcome that is not adverse to the non-citizen;[87] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[88]
[84] Paragraph 5.2(4) of the Direction.
[85] Paragraph 5.2(5) of the Direction.
[86] Paragraph 5.2(5) of the Direction.
[87] Paragraph 5.2(6) of the Direction.
[88] Paragraph 5.2(6) of the Direction.
In relation to sub-paragraph (a) of the immediately preceding paragraph [101], the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a
Class BB Subclass 155 Five Year Resident Return visa until it was mandatorily cancelled on
21 August 2023.[89] This Visa permits a person to ‘travel’ to and ‘enter’ Australia within a specified period of time once it is granted.[90] It does not specify a period for which the visa holder can remain in Australia once it is granted. As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[91] Therefore the application of this

sub-paragraph (a) is not applicable to the Applicant.
[89] R3, pp 134-140.
[90] Regulation 155.511 of the Migration Regulations 1994 (Cth).
[91] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
In relation to sub-paragraph (b) of the abovementioned paragraph [101], the Applicant has spent the last 22 years in Australia since arriving here as a 21-year-old in 2002. He has spent 43 percent of his life in this country and is currently aged 43 years. He has a solid work history in Australia. He has fathered at least one biological child in Australia. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Direction.
In relation to sub-paragraph(c) of the abovementioned paragraph [101], I repeat that the Applicant has since his arrival in 2002, spent 22 years or 43 percent of his life in Australia. He is currently 43 years of age. He has spent 43 percent of his life in this country. This means that the Australian community has a higher than usual tolerance of criminal or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the abovementioned paragraph [101] I am of the view that the length of time the Applicant has spent here (i.e. 22 years since his arrival in 2002) facilitates a raising of the community’s level of tolerance for his offending. This finding cannot be augmented due to him not having spent his formative years in this country.
In relation to sub-paragraph (e) of the abovementioned paragraph [101], I am of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the scope and extent of his offending and its resulting harm thus far has not necessarily been of such a significant and serious magnitude as to dispel any applicable countervailing considerations.
In relation to sub-paragraph (f) of the abovementioned paragraph [101], I have found that none of his convictions are captured by sub-paragraphs (a)-(f) (inclusive) of paragraph 8.5(2) of the Direction. Given that finding, I am not of the view that strong countervailing considerations in his favour should not necessarily assist him. Therefore, my finding must be that the nature of his offending does not, in and of itself, preclude any countervailing considerations working in his favour.
Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [101] of these Reasons, I am of the view that the Australian community’s expectations are modified such that the community may have a higher than usual tolerance of criminal conduct by the Applicant. Because of the nature and extent of this Applicant’s offending between 2011 and 2023, this Primary Consideration 5 nevertheless compels a finding that the abovementioned normative expectation of the Australian community for its Government to not allow the Applicant to hold a Visa should apply to the instant facts and this Tribunal should refuse to set aside the mandatory cancellation of the Applicant’s Visa.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a strong level of weight in favour of this Tribunal affirming the Decision Under Review.
OTHER CONSIDERATIONS
Other Considerations (a): Legal consequences of the decision; (c): Impact on victims and (d): Impact on Australian business interests
Neither SFIC propounds any application of the abovementioned three Other Considerations (a), (c) and (d) to the instant facts.[92] This position did not change during closing submissions at the instant hearing.
[92] See A2, pp 11 [58]- [59] and [63]. See also, R4, p 10 [55] and p 11 [60].
I will find that the totality of the evidence before the Tribunal does not otherwise compel ventilation or analysis of any of the three abovementioned Other Considerations (a), (c) and (d) of the Direction. I will put these Other Considerations to one side and allocate neutral weight to each of them.
Other Consideration (b): Extent of impediments if removed
Factors to be taken into account
Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a): In his PCF, the Applicant ticked the ‘No’ answer in response to the question ‘Do you have any diagnosed medical or psychological conditions?’. He makes no reference to any medication then prescribed to him and does likewise in terms of any reference to him being under the care of any doctor/health professional/counsellor.[93] The Applicant is a 43-year-old man, barely into his middle age, who can safely be found to be in the prime of his life. His primary difficulties are to be found in the emergent requirement that he commence and remain engaged with a rehabilitative process for illicit substance abuse. I will discuss this requirement at paragraph 9.2(1)(c). However, for the purposes of this paragraph 9.2(1)(a) it can be safely found that the Applicant’s age and health are not impediments to his return and resettlement in the Philippines.
[93] See R3, p 62.
Paragraph 9.2(1)(b): there is a ready concession from the Applicant that he would not suffer any language or cultural barrier upon a return and resettlement in the Philippines. He is said to be fluent in ‘Tagalog’ which is one of the primary languages spoken in the Philippines. He spent his first 21 years in that country and must have surely developed a strong familiarity with its language and cultural norms. He has made multiple return visits to the Philippines since his initial arrival in Australia in 2002. There is no language or cultural barriers impeding this Applicant’s return and resettlement in the Philippines.
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in the Philippines. The Applicant has obtained qualifications and acquired a level of work experience in Australia. There is little or nothing to suggest he would not be able to find similar employment in the Philippines which undoubtedly has its own Aged Care sector and retail automotive industry. To the extent he may require short-term government or Centrelink-type support in the Philippines, he will have available to him the same type of such government-benefits support as is generally available to other citizens of that country. I am therefore not of the view that any such economic impediment will be an insurmountable one.
I have earlier discussed the criticality around the Applicant commencing and maintaining a pattern of rehabilitative care for his illicit substance abuse issues in the event of his return to the Australian community. If removed to the Philippines, he will doubtless require similar support in that country to keep his cravings for illicit substances under some kind of remedial management and control. There is , no doubt, such rehabilitative facilities publicly available in the Philippines but it would not be safe to assume that they are to a standard that the Applicant would find as being available to him in Australia. To the extent the Applicant may face such any type of medical impediment in the Philippines, I will find that any such impediment lies in the comparative difference between the quality of such rehabilitation publicly available to him in the Philippines compared to what is available in Australia. Be that as it may, I am not of the view that any such medical impediment is an insurmountable one.
I turn to any social impediment the Applicant may face upon a return to the Philippines. I have earlier noted that his father, who previously resided in the Philippines, has since passed away. During cross-examination the Applicant was asked about remaining contacts and friends in the Philippines. He referred to certain past friends that he made during his tertiary studies in the Philippines but that he has not otherwise maintained any type of close contact with them. He occasionally contacts them via social media. In his latest statement he says ‘I don’t really have any family left in the Philippines following the death of my father. I have not retained any friends in the Philippines since I left.’[94] It can be safely found that the Applicant has very minimal prospects of receiving any social assistance in the Philippines in terms of short term assistance with accommodation, for example. It is quite likely that he would suffer a significant level of social isolation if compulsorily removed. I am satisfied that this lack of social support does present as an impediment to the Applicant’s return and resettlement in Philippines.
[94] A1, p 5 [27].
Findings about impediments
My findings about impediments are as follows:
·the Applicant’s age and state of health are not impediments to his return and resettlement in the Philippines;
·there are no substantial language or cultural barriers impeding the Applicant’s return and resettlement in the Philippines;
·he may face some level of medical and/or economic impediments upon a return and resettlement to Philippines but that those two impediments are not insurmountable; and
·he will face a reality of social isolation if compulsorily removed to the Philippines due to a lack of social support in that country. This lack of social support available to him in the Philippines does comprise a moderately strong impediment to his removal.
Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers, at best, a moderately strong level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Findings: Other Considerations

The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of moderately strong weight in favour of revocation;
(c)impact on victims: is of neutral weight; and
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a strong, but not determinative, level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: is of neutral weight;
·Primary Consideration 3: is of very strong weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of very strong weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: carries a strong weight in favour of affirming the Decision Under Review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 3 and 4 plus Other Consideration (b) outweigh the combined respective weights I have allocated to Primary Considerations 1 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal sets aside the decision made by a delegate of the Respondent on 3 April 2024 and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa.

I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...........[SGD]................
Associate
Dated: 28 June 2024

Date of hearing: 3 June 2024

Solicitor for the Applicant: Ms Marta Mamarot (Principal Solicitor)

South West Migration and Legal Services

Solicitor for the Respondent: Ms Annabelle Wilford (Associate)

Sparke Helmore Lawyers
ANNEXURE A

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2024/2101

GENERAL DIVISION )
Re: Ryan Camarse

Applicant
And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              Senior Member Theodore Tavoularis
DATE:   20 June 2024
PLACE:                    Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal sets aside the decision made by a delegate of the Respondent on 3 April 2024 and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.

………..............[SGD].............................
Senior Member Theodore Tavoularis
ANNEXURE B
Exhibit List[95]
[95] Note to Reader: there is no Exhibit R2 in this list.
Exhibit A1: Applicant’s tender bundle (as noted at page 62 of the Transcript);
Exhibit R1: Respondent’s tender bundle (as noted at page 62 of the Transcript);
Exhibit R3: G-documents (as noted at page 62 of the Transcript);
Exhibit A2: Applicant’s SFIC (as noted by me at [7] of these Reasons); and
Exhibit R4: Respondent’s SFIC (as noted by me at [7] of these Reasons).

Date of hearing:	3 June 2024
Solicitor for the Applicant:	Ms Marta Mamarot (Principal Solicitor)
South West Migration and Legal Services
Solicitor for the Respondent:	Ms Annabelle Wilford (Associate)
Sparke Helmore Lawyers