Canetto and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Canetto and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 367 (18 January 2023)
Division:GENERAL DIVISION
File Number:2022/8961
Re:Mauro Canetto
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Member D. Cosgrave
Date of Decision: 18 January 2023
Date of Written Reasons: 9 March 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the original visa cancellation.
...............[SGD]...........
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory visa cancellation – citizen of Italy – Class BF Transitional (Permanent) visa – failure to pass good character test –criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 90 applied – delegate’s decision set aside and substituted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Member D. Cosgrave

9 March 2023
INTRODUCTION

The Applicant seeks review of the Respondent’s decision not to revoke the mandatory cancellation of his Class BF Transitional (Permanent) visa (the visa).[1]
[1] G4, page 14. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
The hearing was held by video from the Tribunal’s Brisbane Registry on 4, 5 and 12 January 2023. The Applicant represented himself. The Respondent was represented by Mr McLaren, a legal practitioner with Minter Ellison Lawyers. The Tribunal expresses its gratitude to Mr McLaren and commends him for his assistance in this matter.
On 18 January 2023 the Tribunal set aside the Respondent’s decision under review by providing a short form decision which is attached as Annexure B to these written reasons. The Tribunal now gives its reasons for its decision.
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
The Applicant is a 57-year-old Italian citizen.[2] He first arrived in Australia in 1969.[3] He has not subsequently left the country.
[2] G7, page 35.
[3] G42, page 164.
On 17 August 2001, a delegate of the Minister informed the Applicant of an intention to examine whether there were grounds to cancel the Applicant's visa under Section 501 of the Migration Act 1958 (Cth) (‘the Act’).[4]
[4] G17, pages 80-82.
On 29 January 2002, a delegate of the Minister notified the Applicant that the Minister had decided not to cancel the Applicant's visa. The Applicant was also warned that any further criminal conduct would result in the cancellation being reconsidered. The Applicant provided a declaration that he understood the consequences of further offending in relation to his visa status.[5]
[5] Ibid.
On 12 April 2007, a delegate of the Minister notified the Applicant that his permanent visa was liable for cancellation on character grounds under Section 501 of the Act.
On 16 August 2007, a delegate of the Minister notified the Applicant that the Minister had decided not to cancel the applicant's visa on character grounds at that time. The Applicant was also formally warned for a second time that the cancellation may be reconsidered if fresh information was received or if the Applicant incurred a liability on new grounds.[6] The Applicant signed an acknowledgement confirming receipt of the Notice of Decision not to cancel visa under subsection 501 (2) of the Migration Act 1958 and acknowledging the potential for future cancellation.[7]
[6] G15, pages 74-75.
[7] G15, page 76.
On 8 July 2010, a delegate of the Minister notified the Applicant that his visa may be liable for cancellation under Section 501 of the Act.[8]
[8] G14, page 71.
On 9 September 2010, a delegate of the Minister notified the Applicant that his visa had not been cancelled on this occasion.
On 30 March 2015, the Applicant was notified of the cancellation of his permanent visa under Section 501(3A) of the Act.[9]
[9] G12, pages 62-66.
On 15 September 2016, the Applicant was notified that the cancellation had been revoked and signed an acknowledgement confirming receipt of the notice of revocation decision and acknowledging the potential for future cancellation.[10]
[10] G11, pages 59-61.
On 17 March 2022, the Applicant's visa was again cancelled under Section 501(3A) of the Act for failing the character test.[11]
[11] G19, pages 87-93.
The cancellation for failing the character test occurred because the Applicant has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more, due to convictions in the Ipswich Magistrates Court on 5 February 2021 for Stealing (12 months) and Failing to Appear in Accordance with Undertaking (1 month) and was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.[12]
[12] G10, page 57.
On 29 March 2022, the Respondent Minister's department received representations from the Applicant seeking to have the cancellation revoked under Section 501CA of the Act.[13]
[13] G21, pages 96-122.
On 26 October 2022, the delegate found that the power under Section 501CA(4) of the Act to revoke the cancellation made under Section 501(3A) was not enlivened.[14]
[14] G5, page 23.
On 29 October 2022, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of that decision.[15]
[15] G2, pages 4-8.
Offending History
The Applicant’s offending history is set out in:
(a)Australian Criminal Intelligence Commission report (dated 2 May 2022).[16]
(b)Queensland Corrective Services ‘Integrated Offender Management System Sentence Calculation Details’ report (dated 7 February 2022).[17]
(c)Magistrates Court of Queensland, transcript of proceedings (dated 5 February 2021).[18]
(d)Magistrates Court of Queensland, Verdict and Judgment Record (dated 5 February 2021).[19]
(e)Magistrates Court of Queensland, transcript of proceedings (dated 19 December 2014).[20]
(f)Supreme Court of Queensland, Transcript of proceedings (dated 11 June 2004).[21]
(g)District Court of Queensland, Transcript of proceedings (dated 14 August 2001).[22]
(h)Supplementary Documents, S1 to S108.[23]
[16] G7, pages 34-46.
[17] G8, pages 47-48.
[18] G9, pages 49-55.
[19] G10, pages 56-58.
[20] G13, pages 67-70.
[21] G16, pages 77-79.
[22] G18, pages 83-86.
[23] S Documents, pages 1-617.
The Applicant’s offending can be categorised under the following areas:
(a)Theft.
(b)Drug abuse.
(c)Obscene language.
(d)Willful and unlawful damage to property.
(e)Behaving in an indecent manner.
(f)Aggravated assault on a female
(g)Breaches of probation.
(h)Breaches of bail conditions.
(i)Unlawful use of a motor vehicle.
(j)Breaking and entering
(k)Driving without a licence.
The Applicant has approximately 200 offences recorded against him between December 1984 and April 2022.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read with Sections 501(6) and 501(7), oblige the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in Section 501(6) of the Act. A person fails the test if they have a ‘substantial criminal record’ defined by Section 501(7) of the Act.
Section 501(7)(c) of the Act defines a ‘substantial criminal record’ as including the situation where a person is sentenced to a term of imprisonment of 12 months or more.
Under Section 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in Regulation 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision if:
(a)the person whose visa has been cancelled makes representations in accordance with the invitation; and
(b)the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
ISSUES
Character test
The Applicant’s visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (Sections 501(6)(a) and 501(7)(c) of the Act).
The Applicant does not pass the character test due to the operation of

Sections 501(6)(a) and 501(7)(c) of the Act.
Consequently, Section 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
The remaining issue for the Tribunal to consider under Section 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ for revocation.[24] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation at the time of its decision.[25]
[24] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[25] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
Is there another reason why the Applicant’s visa cancellation should be revoked?
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, approving the reasoning in Viane,[26] identified the following principles as relevant to the statutory task conferred by Section 501CA(4) at [27]:
1If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
2The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
3The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
4However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
5Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
6If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.…”
[26] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
When the Tribunal assesses and considers the factors weighing for and against revoking a visa cancellation, Section 499(2A) of the Act requires it to comply with Direction 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[27]
[27] See Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at para [38].
The Direction
Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act. Decision makers under the Act, except for the Minister acting personally, must apply the Direction.[28]
[28] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, at [4] (Rares, O’Callaghan and Jackson JJ).
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[29]
[29] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles in paragraph 5.2 of the Direction inform the decision-making process:[30]
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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
[30] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a decision-maker must take into account the primary and other considerations described in Paragraphs 8 and 9 of the Direction in determining whether to set aside or affirm the delegate’s non-revocation decision.
Paragraph 8 of the Direction provides the following primary considerations:
1protection of the Australian community from criminal or other serious conduct;
2whether the conduct engaged in constituted family violence;
3the best interests of minor children in Australia; and
4expectations of the Australian community.
Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
(a)International non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i) strength, nature and duration of ties to Australia; and
(ii) impact on Australian business interests.
Paragraph 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’

The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on the specific circumstances of each case.[31] The weighing process is determined by decision-makers exercising the relevant power under the Act.[32]
[31] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[32] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The following is a summary of the evidence before the Tribunal including the evidence of witnesses who appeared before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of Section 501G of the Migration Act, documents tendered by the Applicant and the Respondent and evidence given by the witnesses at the hearing in response to questions in examination-in-chief, re-examination, under cross-examination and from the Tribunal.
Documentary evidence
The hearing received written evidence, which is attached to this Decision and marked ‘Annexure A’. The following documents were tendered into evidence and considered by the Tribunal:
(a)G Documents numbering 192 pages.
(b)Supplementary G Documents numbering 644 pages and containing documents produced under summons by the Queensland Police Service, the Beenleigh Magistrates Court, the Ipswich Magistrates Court and Queensland Corrective Services.
(c)The Applicant’s daughter, TU’s Year 4B report.
(d)Letter of support from Tina Taylor.
(e)Letter of support from the Applicant’s step-son, IU.
(f)Drawing by TU.
(g)Cover page of Positive Choices course.
(h)Cover page of Coach Yourself To Wellness course.
(i)Applicant’s statement regarding his prior sexual abuse while incarcerated.
(j)Applicant’s statement regarding his current health.
(k)TU’s birth certificate.
(l)Tina Taylor’s birth certificate.
(m)Letter of support from Greg Moran.
(n)Letter of support from Bernadette Junge.
(o)TU’s statement.
The witnesses who gave evidence during the hearing were:
(a)The Applicant.
(b)The Applicant’s wife, Tina Taylor.
(c)The Applicant’s daughter, TU.
The Applicant’s evidence
Key aspects of the Applicant’s evidence are summarised below:
Examination-in-chief by the Tribunal
The Applicant affirmed his statements.[33]
[33] Transcript, page 13, lines 4-8.
Cross-examination
The Applicant recounted his employment history and agreed that it had been approximately 10-15 years since he last held paid employment.[34]
[34] Transcript, page 16, line 11.
He agreed that “a lot” of his offending has been related to drug abuse.[35]
[35] Transcript, page 16, lines 30-31.
He recounted his alcohol consumption and that he cannot “handle” much alcohol anymore.[36]
[36] Transcript, page 17, lines 35-37.
He first used methamphetamine around the age of 28, had largely ceased taking the drug by 2016 but had subsequently experienced relapses.[37]
[37] Transcript, page 18, lines 8-35.
Regarding the relapses, he stated:[38]
“As I’ve had relapses I’ve endeavoured to add support networks to my relapse plan, especially from - since the birth of my daughter, she is my only daughter and I know - I know first-hand I’ve been witness to what the drug does to families and children and people out in the community and since the birth of my daughter I - bear with me, sometimes I struggle with what I lose but I 100 per cent try and endeavour to stay away from it.”
[38] Transcript, page 18, lines 35-40.
Regarding his wife’s drug use, he stated:[39]
“Respondent: And - but this is 10 years later, this entry, January 2019, so were you aware of her continuing to use drugs sort of throughout your relationship? What was that like?
Applicant: She - she - I was aware of having (indistinct). But as far as that goes (indistinct) but she’s been one of the - one of the reasons why - okay, I’ve had relapses and that but at the same time she’s pushed me to try and strengthen my relapse prevention program both on paper and in my mind - in my head - not to go there, if I can say it that way.”
[39] Transcript, page 19, lines 27-33.
Regarding a drug relapse in jail in November 2021, he stated:[40]
“Respondent: This is from November 2021, so a little bit over 12 months ago. And what it says is that - so this is - as I say, late 2021 you’re engaging with Corrective Services and you, at this time, “made admissions to using MET” which I take to be methamphetamine on the 28th and Suboxone on the 30th, inferentially both of those November 2021
But it then goes on, at the bottom of that paragraph it says that Canetto placed all blame on his ex-partner, noting she was a trigger and he had cut her out of his life.
If I read that in context I understand that be suggesting that you suggest that your partner was a trigger for your drug use. Is that correct?
Applicant: At that time we were experiencing a rough patch, we were homeless, I got (indistinct) we didn’t have a home with my daughter or my partner. I said that to blame someone basically. I was - I didn’t feel very - I didn’t feel very accomplished not providing my only daughter with at least a roof over her head. I haven’t got a big circle of friends. I’ve got no friends, to be honest, the only person I could blame really that comes to mind, was Tina. And that’s basically the reason why I said that.
Respondent: Sure. So when you relapsed at that time, you used methamphetamine again, I mean, what was it that triggered you to do that? Was it just a general difficulties with your living situation?
Applicant: Generally not having a job and being homeless, like we did COVID - where were living - we lived there for nearly five years and he suddenly turned around and booted us out because he had to sell the place for his own personal reasons. I ended up at my father’s and my father, may I say in the most simplest terms, is an older generation Italian that found - that found my daughter’s behaviour - and her being (indistinct) became very difficult to live with. At that point I left home with my daughter at my father’s and was a witness to detachment between her grandfather and herself because of this behaviour. I felt useless to (indistinct) felt - I felt useless that not only didn’t I have a home but the only home I could find was through my direct family and then there would be rising topics between my father and my daughter because he brought me up a certain way, he believes a certain different way. Whether it be prehistoric - whether it be from the generation he comes from and the country he comes from that the problem still existed there. I just felt useless as a man and as a father. I endeavoured - I endeavoured as you may know, this is my second time in detention in Immigration and from release from the first time, I endeavoured to stay away from being incarcerated and (indistinct) and it just - it just piled up against me, you know, through no fault through myself or my partner as we (indistinct) whilst I was getting all this, as people do, and I found myself on the side of the street with a nine year‑old little girl. I - please, I apologise if I repeat myself but I felt useless as a man and as a dad, and I am so proud of my daughter, she is so much a part of me that I - like any father, I’d do anything for her. Sorry about that but…”
[40] Transcript, page 20, line 20- page 21, line 21.
The Applicant confirmed that he had seen and acknowledged the 17 August 2001 communication from the Minister’s delegate examining whether there were grounds to cancel his visa.[41]
[41] Transcript, page 31, lines 1-13.
The Applicant provided the following context to the 17 August 2001 communication and its effect on him:[42]
[42] Transcript, page 31, line 20 – page 32, line 35.
“Respondent: Do you remember what you thought at the time about, sort of, the severity and the seriousness of that warning?
Applicant: I remember I thought it was serious and through discussions with my father, my father informed me that - oh, it was in his opinion - that - it was in his opinion that when I was in Australia on my mum’s passport, I was on a absorbed person visa, which meant that if you came here before 1984 and never left the country, you’d become absorbed into community and ultimately be looked at as an Australian. So, my father gave me the impression that, yes, it is serious, but it was a - I don’t know how to say it - a repetitive - a repetitive clerical procedure, if I could say it like that. That because of me coming, as I said, on my mother’s passport and having the visa that I had, that actually couldn’t be taken and this formal warning - these warnings in writing - was a - bear with me (indistinct) I’m not using the right word, but formality.
Respondent: What I’m suggesting is where you’ve received that warning, that must have pretty quickly disavowed you of any thought that it was just a clerical thing. It says expressly - and you acknowledge it - that any further conviction will result in it being reconsidered, and disregard of the warning would weigh heavily against you into the future?
Applicant: Yes. I was worried about it a lot.
Yes ?
Applicant: (Indistinct). I don’t know what else to say. I’ve been - even in the evening, when you’re looking out of prison and many people throughout my experiences in prison say seeing at face value to at some point (indistinct) because (indistinct) being a person that (indistinct) hates being there more than anyone that walks this earth. But when you’ve got a drug addiction and you work so hard to not relapse, and unfortunately there comes times of weaknesses and you do relapse, there is no - there is no making sense or being wary of warnings given you just - you end up relapsing and you use that drug again without - without realising the seriousness of these warnings, if I can say it like that.
Respondent: So, I mean, are you saying that - I don’t want to put words in your mouth, but I’m just trying to (indistinct)?
Applicant: Yes.
Respondent: Are you saying that you understood that it was serious - that the warning was serious - but that wasn’t enough to help you refrain from offending in the face of your drug addiction?
Applicant: It was to some level. But once that drug was in me, it wasn’t purposefully forgotten, but it was put on - on the backbench, if you’d like to say it like that. I, once again, apologise if I’m not using the right (indistinct) ‑ ‑ ‑
That’s fine.
Tribunal: That’s fine, Mr Canetto. We’re just trying to get an understanding of, you know, were you - did you understand what that meant ‑ ‑ ‑?
Applicant: Yes, I did.
Tribunal: And how did that affect your ongoing conduct. Is that a fair way to put it, Mr McLaren?
Respondent: Thank you, Member. Yes?
Applicant: Yes, I did understand it, and - look, no I don’t know what to say. I did understand it. It’s even more serious. It’s even - the utmost more serious now I’ve got a young little girl. It’s more visible, it’s more - it’s more sunken in my head, because I have a little girl that asks me and makes me cry on the phone asking me when I’m coming home. Back then I didn’t have a little girl. But at the same time I - I must express that I wasn’t ignorant of the warnings. It’s - in many ways it’s a case of - oh, how do you explain it - it’s a case of it will never happen to me. And, well, now I’m sitting here before you and I’ve got a family, and it has happened to me. And the seriousness and the weight of the totality of everything I’ve done has hit home.”
The Applicant acknowledged the 2007 and 2010 warnings about his visa being at risk of cancellation,[43] together with his 2015 visa cancellation and subsequent 2016 revocation of that decision.[44]
[43] Transcript, page 32, lines 9-25.
[44] Transcript, page 32, lines 26-44.
The Applicant acknowledged his reflection on his situation.[45]
[45] Transcript, page 33, lines 28-43.
The Applicant gave a forthright account at his rehabilitation efforts.[46] He also gave detail about his present motivation to avoid drugs and his daughter TU’s behavioural issues.[47]
[46] Transcript, page 37, line 37 – page 40, line 40 and page 62, lines 6-15.
[47] Transcript, page 54, line 32 – page 56, line 42.
He further described TU’s behavioural issues and his responses.[48]
[48] Transcript, page 57, line 30 – page 59, line 43.
He described his allegations of historic sexual abuse while incarcerated.[49]
[49] Transcript, page 62, line 20 – page 63, line 5 and page 63, line 46 – page 64, line 19.
Tina Taylor’s evidence
Key aspects of Ms Taylor’s evidence are summarised below.
Examination-in-chief
Ms Taylor affirmed her statements.
She denied that there had been any physical violence in her relationship with the Applicant.[50]
[50] Transcript, page 74, lines 17-21.
Cross-examination
She described how she, the Applicant and their daughter TU had become homeless and separated during COVID.[51]
[51] Transcript, page 76, lines 1-12.
She rejected claims that the Applicant has abused or been physically violent with TU.[52]
[52] Transcript, page 76, line 40 – page 77, line 19.
She elaborated on TU’s current behavioural issues:[53]
[53] Transcript, page 77, line 27 – page 78, line 11.
“Respondent: Okay. Now, I think you’ve said in one of your statements that your daughter’s behaviour at the moment is pretty bad. Can you explain that? Sorry, not explain that. Can you just - can you just expand on that?
Witness: She’s out of control. Her behaviour is sometimes reckless. She’s kicked holes in the wall here, in our new home. I’m currently with Kummara Families, working with them at this present time. I haven’t engaged with them right now because it’s holidays and the Christmas period just ending. But I’m in touch with them to try and get some more help from Kummara Families but she stands over me. She tells me what to do, how it’s going to be, what she wants she gets. Yes, she’s just reckless and out of control at the moment. Walks all over me so to speak.
Respondent: What is Kummara Families? Is that like a community group or something that assists families in need?
Witness: Yes. Yes.
Respondent: Right. And how long have you been engaging with them for?
Witness: I’ve only just started engaging with them. Like, child safety referred me to them some time ago, back in 2018 when they made contact with me. However, at that time, I sort of didn’t need the assistance, where now I’ve reached out to them and put a self-referral in for myself and [child TU] to make contact with them, so then they can start helping us.
Respondent: Right. And what is that you expect that they might be able to assist you with?
Witness: Just ways of management with [child TU]’s behaviour and control.
Respondent: Okay. Sure. And do you know whether - do they provide, sort of, support workers that would come to your home or is it a bit more ‑ ‑ ‑ ?
Witness: Yes.
Respondent: They do do that?
Witness: Yes, support workers that come to the home.
Respondent: Right. And sorry, have you had any assistance from support workers yet?
Witness: No, not yet.”
She candidly described her own drug abuse and her criminal record.[54]
[54] Transcript, page 78, line 20 – page 81, line 7.
She described TU’s need for her father:[55]
[55] Transcript, page 81, lines 9-16.
“Respondent: Now, if Mauro were to be released into the community, would you expect he would move back in? He would move in with you in your new home?
Witness: Yes, I hope so.
Respondent: Okay?
Witness: His daughter, [child TU] really needs him. Like, what I meant by [child TU]’s behaviour is erratic and out of control, Mauro is the only one that can sort of calm her. She only listens to hm. He plays a big part I her life. Yes. We just need him home.”
She clarified the reasons why the family had become homeless and separated during COVID:[56]
“Respondent: So some of the evidence yesterday was around that period of homelessness when you were evicted from your previous home. And as I understood some of the evidence, you were living apart from Mauro for some of that time. Is that right?
Witness: Yes. Yes. Because I could just couch surf and I was working. Mauro went to say [sic] with his dad because travel from Alexandra Hills to my workplace at Yamanto was just impossible. So Mauro and [child TU] stayed with his dad and I stayed here in Ipswich, closer to my work.
Respondent: Sure. Sure. Do you have a driver’s license?
Witness: No. I’m disqualified. That’s why I’m on parole.
Respondent: You’re disqualified from driving at the moment. Okay. How do you get about?
Witness: Public transport or Ubers or my mates that would drive me.
Respondent: Okay. Sure. Sure?
Witness: But where my house is now, it’s just up the road from work. So it’s just a jump on one bus and them I’m there.”
[56] Transcript, page 81, lines 24-40.
Cross-examination by the Tribunal
Regarding the Applicant’s risk of recidivism, the witness stated:[57]
“Tribunal: I’ve got a number of points I need to consider in making my decision, and one of them is the risk - the extent of the risk that Mr Canetto would pose to the Australian community if he was not to be deported. If he was to be kept in the community. Mr Canetto has a long history of drug addiction and drug abuse. At times it’s been thought that he’d be a candidate for rehabilitation. Judges have previously said this. Yet, he has continued to go back to drugs. So one of my concerns about the risk to the Australian community is how likely is Mr Canetto to fall back into drug use if I decide to keep him in Australia. Having observed him over the course of your relationship, what do you think - in your honest language here - this is not a time to sugar coat matters. Do you think he will fall back into drug use, more likely than not?
Witness: No, I think we’re both abstaining from drugs. I’ve had a lapse, I admit that. But I’ve got the support and I’m working and, yes, I think we can do it. Well, we’ve done it in bits. Like, in terms - like, in duration of our relationship together, it’s never always been drug use with us. We have had, you know, quite a numerous amount of time off the drugs also. Yes. I don’t think he’ll go back to it. I really am optimistic in that. I think he’s getting old now and just once to settle down. Just want to settle down with our daughter and my son and get on with life really.”
[57] Transcript, page 82, lines 9-28.
Regarding the relationship between the Applicant and the witness’ son, the witness stated:[58]
“Tribunal: Talking of your son, how would you describe the relationship between Mr Canetto and your son?
Witness: Excellent. Yes, my son looks up to Mauro. When there’s times he can’t talk to his dad, Mauro is that person that is pretty much next like a dad in giving him help or advice or - yes, he’s a big deal in my son’s life. Yes, I think their relationship is really good I think.”
[58] Transcript, page 82, lines 30-34.
TU’s evidence
Key aspects of TU’s evidence are summarised below.
Examination-in-chief
TU affirmed the contents and the intent of the drawing in her letter dated 4 January 2023.[59]
[59] Exhibit 13.
THE TRIBUNAL’S CONSIDERATION OF THE EVIDENCE
The Tribunal found the Applicant’s oral evidence to be self-aware and generally honest about his offences. Where he qualified matters or the context around his offences, the Respondent offered no alternative evidence and the Applicant’s qualifications appeared reasonable. Two exceptions were when allegations of violence towards a woman were put to him[60] and his claim to have found car keys in the gutter which led him to steal a vehicle.[61] He appeared honest about his drug abuse and its impact on his life.[62]
[60] Transcript, page 41, lines 10-20.
[61] Transcript, page 47, lines 4-13.
[62] See, for example, Transcript, page 51, lines 1-25.

Ms Taylor’s oral evidence was given honestly and forthrightly and with no effort to qualify or evade issues.
TU’s brief testimony presented as honest and offered a positive insight into the Applicant’s relationship with his family.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
Paragraph 8.1 of the Direction states:
1When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
2Decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal consideration: The nature and seriousness of the Applicant’s conduct
Paragraph 8.1.1(1)
This paragraph states that, in considering the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A 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 reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Tribunal has considered the following remarks by His Honour Justice Helman of the Queensland Supreme Court on 11 June 2004 when sentencing the Applicant:[63]
“Canetto, you would be only too aware that you have a very bad criminal history and the offences to which you have pleaded guilty are many. The ones alleged on the indictment are serious offences and the other ones are as well, in some instances serious, in others not so.
I take into account your pleas of guilty, the fact that you are addicted to drugs, and that that seems to have been the main reason for your persistent offending.”
[63] G16, page 78.
The Tribunal has considered the following remarks by Magistrate Chilcott of the Queensland Magistrates Court on 19 December 2014:
“Okay. I’ve had regard to your plea of guilty. I’ve taken into account your history that’s before the Court. Your history is absolutely shocking, to say the least, but I do take on board what Mr Cunningham has said on your behalf. I take those factors into account.”[64]
“Don’t stuff things up at all. This has no doubt all been said to you in the past, and the rest is up to you.”[65]
[64] G13, page 68.
[65] G13, page 69.
The Tribunal has considered the following remark by Magistrate Shepherd of the Queensland Magistrates Court on 5 February 2021:[66]
“Your history is appalling.”
[66] G9, page 55.
The Tribunal has considered the Applicant’s[67] and Respondent’s[68] respective submissions about Paragraph 8.1.1 of the Direction.
[67] Exhibits 4-13.
[68] Respondent’s SFIC.
In essence:
(a)The Respondent contends that the Applicant’s offending history, when viewed in totality, is very serious,[69] while acknowledging that not all of the Applicant’s convictions are inherently serious by themselves.[70]
(b)The Applicant addresses paragraphs 8.1 and 8.1.1 in an unsigned and undated personal statement.[71] He writes:
“8.1 Protection of the Australian community
(1) I have no current or past GBH, and/or assaults, and solely believe I am of no risk to any or all individuals in the Australian community.”
“8.1.1 The nature and seriousness of the conduct
(a) I have no past or present sentences, or convictions and/or offences that any sexual crimes, or against women, the elderly or children.”
“8.1.1
it has been some eight years since I have landed back in prison, and I believe in regards to my current sentencing question I believe not only is my offending decreasing, but also the seriousness of my offending is decreasing."
[69] Respondent’s SFIC, paragraph [32].
[70] Transcript, page 102, lines 24-41.
[71] G21, O3, pages 116-117.
Paragraphs 8.1.1(1)(a)(i) 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
These paragraphs require the Tribunal to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women and acts of family violence are viewed very seriously.
The Applicant’s Criminal Intelligence Commission report[72] evidences that the Applicant has convictions from 1989 and 1990 for assault, aggravated assault on a female and behave in an indecent manner. The non-custodial outcomes suggest that these were not viewed by the courts as serious examples of their type, but they enliven paragraph 8.1.1(1)(a)(ii) and possibly paragraph 8.1.1(1)(a)(i).
[72] G7, pages 45-46.
The Tribunal considers that this paragraph carries some but non-determinative weight in favour of the delegate’s decision to not revoke the cancellation of the Applicant’s visa.
Paragraph 8.1.1(1)(b)(i)
This paragraph is not relevant as the Applicant has not committed any offences involving causing a person to enter into or to otherwise become a party to a forced marriage. There is no reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document.
Paragraph 8.1.1(1)(b)(ii)
This paragraph is not relevant as the Applicant has not committed any offences 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. There is no reference in the material to any formal conviction to such offending nor is there any reference to such conduct in an independent and/or authoritative police narrative or similar document.
Paragraph 8.1.1(1)(b)(iii)
This paragraph refers to conduct forming ‘...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”. There is no reference in either party’s oral or written submissions propounding or mentioning this component of the Direction. The Tribunal finds that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(iv)
This paragraph is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct. There is no reference in the material to a crime committed while the non-citizen was in immigration detention or for an offence against section 197A of the Act.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal is precluded from considering sentences imposed on this Applicant for:
(a)any violent offending that he may have committed against women or children,
(b)acts of family violence; and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.
The Applicant has received many sentences of imprisonment, including several of
[73] Respondent’s SFIC, paragraph [24].
12 months or more, up to four years, for some of his theft, drug and driving offences, though these occurred mainly up to 2005. He has also received many non-custodial sentences, including fines, restitution orders, drivers licence disqualifications, probation, community service orders, rehabilitation orders and good behaviour bonds.[73]
These sentences and penalties suggest that the Applicant’s offences were viewed by the courts to fall at the lower end of the range in terms of seriousness.
The Tribunal considers that this paragraph carries some but non-determinative weight in favour of the delegate’s decision to not revoke the cancellation of the Applicant’s visa.
Paragraph 8.1.1(1)(d)
This paragraph addresses two specific aspects of a non-citizen's offending: its frequency and/or whether there is any trend of increasing seriousness.
Frequency
The Respondent contends that the frequency of the Applicant’s offending has remained consistent.[74] The Applicant contends that the frequency of his offending is decreasing. Reviewing the chronology set out in the Applicant’s Criminal Intelligence Commission report,[75] the Tribunal agrees with the Respondent’s contention in this respect.
[74] Respondent’s SFIC, paragraph [25].
[75] G7, pages 45-46.
Trend of increasing seriousness
The Respondent buttresses its contention that the Applicant’s offending history is very serious by observing the general seriousness of driving offences and the Applicant’s driving offences in particular.[76] The Applicant has submitted that the seriousness of his offending is decreasing.[77]
[76] Respondent’s SFIC, paragraph [26].
[77] G21, pages 116-117.
The Tribunal concurs with the Respondent’s specific contention in relation to driving in view of the Applicant’s disqualified driver status. Considering the totality of the Applicant’s Criminal Intelligence Commission report[78] and discerning a trend within this is complex, given the Applicant’s extensive offending history, but it is reasonable to state that this history demonstrates a trend of consistency in terms of bad conduct and offending.
[78] G7, pages 45-46.
Paragraph 8.1.1(1)(e)
This paragraph addresses the cumulative effect(s) of the Applicant’s repeated offending.
The cumulative effects of the Applicant’s long history offending can be characterised as imposing significant externalities and costs on his family and the Australian community and a financial imposition on the policing, judicial and jail systems.
Paragraph 8.1.1(1)(f)
This paragraph is concerned with whether the Applicant has provided false or misleading information to the Minister’s Department, including by not disclosing criminal offending.
In the absence of evidence from the Applicant or the Respondent that enlivens this paragraph, it is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(g)
This paragraph involves the issue of whether the Applicant has re-offended since being formally warned about the consequences of further offending in terms of their visa status to remain here.
It is enlivened and engaged by the 8 warnings and notifications – including a prior visa cancellation and revocation of that cancellation – the Applicant received, and which had no apparent impact on his offending behaviour.
Tribunal finding: The nature and seriousness of the Applicant’s conduct.
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred above, the Tribunal finds that the totality of the Applicant’s unlawful conduct in Australia should be characterised as very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
This aspect of the Direction requires the Tribunal to assess the risk the Applicant poses to the Australian community if he reoffends, taking into consideration the nature of any harm and its probability.
Paragraph 8.1.2(1)
This paragraph states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2)
This paragraph provides that, in considering the risk to the Australian community, a decision-maker must have regard to the 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; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since 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.
In assessing the risk to the Australian community, the Tribunal has first considered the evidence and then the Applicant’s and Respondent’s oral and written submissions about paragraph 8.1.2 of the Direction.
The Respondent submits:[79]
[79] Respondent’s SFIC, paragraphs [34] – [38].
“[34] The Applicant has been convicted of various types of offences, including drug related offences, traffic offenses [sic], assault, stealing, wilful exposure, and possessing suspected stolen property. The Minister contends that the nature of the harm should the Applicant re-offend would be similar to that which was caused by his past offending; namely, potential physical, psychological and economic harm.
Likelihood of the Applicant engaging in further criminal or other serious conduct
[35] In relation to the likelihood of re-offending, the Applicant states in his request for revocation that he understands that stealing is "wrong and not accepted in society"[80]. The Applicant further states that this offence was motivated by the shame the Applicant felt for not being able to provide a home for his family after the Applicant, his partner, and the Applicant's daughter become homeless[81].
[80] G21, page 110.
[81] G21, page 110.
[36] With respect to the likelihood of the Applicant reoffending in the future, the Applicant opines that the only risk would be the threat of harm to his daughter[82]. The Applicant claims, however, that in such a situation, he would remember the consequences of his actions and that he could not help his daughter if again placed in custody[83]. The Applicant's statements display limited insight into the broader consequences of his offending on the Australian community.
[82] G21, page 110.
[83] G21, page 110.
[37] The Minister contends that the Applicant remains an unacceptable risk to the Australian community in circumstances where:
(a)     The Applicant's constant past encounters with the law, including lengthy period of incarceration, and the presence of a family support network have not previously deterred the Applicant from offending, nor encouraged him to reform his criminal conduct. The Applicant has enjoyed a network of family support in Australia, including immediate family (his partner, daughter, father and, sister), and cousin. However, the Applicant's residence in Australia has been characterised by frequent interactions with police, and the imposition of two dozen custodial sentences in the past 15 years alone. This indicates that the even if the Applicant finds himself in a stable and supportive environment going forward, the Tribunal can have no confidence that this is likely to prevent him from reoffending.
(b)         The 2015 cancellation of the Applicant's visa, and the formal warnings issued by the Minister in 2002, 2007 and 2010 about the impact of criminal conduct on his visa status, have similarly not served to curtail the Applicant's offending.
(c)    The Applicant has not expressed remorse for his criminal record. Rather, the Applicant has reasoned that his offending was caused by the circumstances in which he found himself[84]. The Applicant opined that should he again find himself in a situation where he perceived that his daughter was under some kind of "threat", the Applicant has acknowledged that he would again commit further offences[85]. This indicates that the Applicant is able to rationalise his offending if he feels there was some justification for the conduct. To this end, records obtained from Queensland Corrective Services (QCS) describe the Applicant as appearing to take "minimal responsibility for his offending"[86].
(d)     The Applicant appears to show little insight into his offending. In this application for revocation, the Applicant states that he has "no current or past G.B.G, and no assaults, and solely believe I am of no risk to any or all individuals in the Australian community"[87]. The Minister submits that this demonstrates a lack of understanding about the harm which may be caused by the Applicant's repeated drug, theft, or traffic offences in particular. The Applicant further claims that he has not committed any "sexual crimes" or crimes against women. Again, this demonstrates a lack of insight by the Applicant has he has been convicted for both aggravated assault against a female[88], and wilful exposure[89].
(e)         The Applicant has been described as recently as November 2021 in records obtained from QCS as having "entrenched pro-criminal views", a continued association with pro-criminal peers, and possessing a pro-criminal attitude and a disinclination towards engaging in intervention[90].
(f)     Much of the Applicant's offending has occurred against a background of drug abuse and addiction. While there is evidence that the Applicant has been sentenced to periods of drug rehabilitation, the success of such courses is unclear. Moreover, the Applicant has not demonstrated the ability to refrain from drug abuse for a significant period while in the community. It is further noted that the Applicant's partner has a history of substance abuse[91]. Moreover, the Applicant may be homeless if returned to the community. The Minister contends that these factors make it even less likely the Applicant will find himself in an environment in which to facilitate permanent rehabilitation from a drug addiction which has spanned nearly 40 years, if returned to the community.
[38] In light of the above, the Minister contends that the Applicant poses a real and significant risk of re-offending. The Tribunal can have no confidence that the Applicant is likely to refrain from further criminal conduct in the future.”
[84] G21, page 110.
[85] G21, page 110.
[86] Supplementary Tender Bundle 81, page 477.
[87] G21, page 116.
[88] G7, page 46.
[89] G7, page 46.
[90] Supplementary Tender Bundle 81, page 484.
[91] Supplementary Tender Bundle 99, page 602.

The Applicant’s relevant written submissions state:
(a)“Due to covid pandemic, the cost of living, I foolishly tried to provide in times of need for my family, food on table et cetera is why the stealing come into effect or should I say come in play, I do know this is wrong and not accepted in society. Also due to covid our house was sold by the owner and that made myself and my family homeless I was ashamed as a father not being able to provide a home for my family.”[92]
(b)“The only risk to myself relapsing in the future which is a direct result to reoffending would be the threat of harm to my daughter in saying this I believe if this were to happen in future I would firstly remember of the consequences of my actions, I'm of no use at this point of time to my daughter or myself being placed back in custody”.[93]
The Tribunal’s Consideration: The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct.
[92] G21, O3, page 110.
[93] G21, O3, page 110.
The Applicant’s long-running history of criminal conduct has imposed long-term significant costs on the Australian community in terms of the investigative, judicial, and corrective resources required to address the results of his offending.
If he re-engaged in drug abuse, the locus of the resulting harm would be himself, his wife and his daughter. This locus would expand if he stole or drove dangerously on public roads.
The dismaying prospect of the nature of the potential harm to the Australian community, if the Applicant was to re-offend in the manner of his prior offending, is clear to the Tribunal.
The Tribunal’s Finding: The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct.
The potential harm arising from a repeat of the Applicant’s conduct encompasses a broad range of physical, psychological, financial, and societal consequences.
Further criminal or serious conduct of the categories the Applicant has previously engaged in would result in material physical, psychological and financial harm to the Australian community.
The Tribunal’s Consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct.
The Tribunal has holistically considered the totality of the evidence in addressing the likelihood of the Applicant engaging in further criminal or serious conduct.
The issues surrounding the consideration of risk under Section 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn, have been extensively considered by the Tribunal and superior courts.[94]
[94] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194 stated that the reference to ‘criminal conduct’ is:
“…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.”
[96] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The clear legislative intention is that the threshold is whether there is ‘a’ risk.[95]

The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[96]
On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
“The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
[95] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal (FC)), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
“… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.”
In Sabharwal (FC) the Full Court noted that the Minister said he ‘could not rule out the possibility of further offending by Mr Sabharwal.’[97] The Full Court, citing Justice Moshinsky’s decision in Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588, 608 [62], found that the Minister’s statement was, in substance, also a finding that there was a risk of the Applicant re-offending.
[97] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58] (“Sabharwal (FC)”).
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575): [98]
“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
(Added emphasis.)
[98] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].
Justice Mortimer explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924, [37], where Her Honour noted:[99]
“That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.”

126.Considering and reading the Applicant’s Australian Criminal Intelligence Commission report[100] as a codification of his past criminal and serious conduct demonstrates probability, regularity and the recurrence of conditions such as illicit drug use that encourage or drive the Applicant’s offending.
[99] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
[100] G7, pages 34-46.

Consequently, by applying the reasoning in Sabharwal FC and Guo, there is “a risk” or a likelihood of the Applicant engaging in further criminal or serious conduct.
The Tribunal does not have the benefit of an expert risk assessment to assist its consideration of this issue aside from certain Queensland Corrective Services documents contained in the Supplementary G document bundle:
“Mr Canetto's criminal history depicts a significant continuation on offending over 20 correctional episodes. Mr Canetto was subject to an IDRO however in 2010 this was vacated. The Termination Report indicates he continued drug use during the order and further offending while also being dishonest. Mr Canetto was subject to home detention in 1998 however this was revoked due to non-compliance. Mr Canetto has contravened all of his orders and most have been previously revoked due to non-compliance.
In consideration of the above, it is assessed that Mr Canetto presents with an entrenched pro criminal attitude. This can be addressed in case management by way of completing the QCS facilitated cognitive skills workbook to increase problem solving and consequential thinking.”[101]
[101] S99, pages 588-589.
The Tribunal notes the two Queensland Corrective Services ‘Risk of Re-Offending Assessment -RoR-PPV’ test sheets included in the Supplementary G document bundle. The first, chronologically, assesses the Applicant’s risk at 16 out of a possible 22, with 22 being the highest risk of re-offending on 13 November 2018.[102] The second, dated 12 February 2021, assesses the Applicant’s risk at 14 out of a possible 20, with 20 being the highest risk of re-offending.[103]
[102] S104, page 611.
[103] S101, page 594.
A consideration of the risk or likelihood of the Applicant engaging in further criminal or serious conduct should encompass the factors that facilitate the risk or, conversely, hinder or retard the risk. Doing this enables the Tribunal to consider Justice Mortimer’s question as to “whether the risk should be “tolerated”.”
The main driver and risk factor of the Applicant’s offending is drug abuse or the consumption of illicit or illegal drugs.
Additional facilitating factors arose from the Applicant’s homelessness during the COVID pandemic and the separation of the Applicant’s family.
The Applicant recognises the risk that his addiction to drugs creates.
His evidence indicates that the desire to reunite with his wife and daughter is a strong risk management factor that can hinder or retard the risk of his re-offending.
A further factor that would militate against further drug abuse is the poor state of the Applicant’s health and his recognition that his drug abuse is partly to blame.
The Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal finds that the risk to the Australian community should the Applicant commit further offences or engage in serious conduct both clearly exists and is a material risk.
Conclusion: Primary consideration 1: Protection of the Australian community
This consideration weighs heavily against revocation of the delegate’s decision to not revoke the cancellation of the Applicant’s visa.
Primary consideration 2: Family violence committed by the non-citizen.
Paragraph 8.2 of the Direction states:
1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)     the extent to which the person accepts responsibility for their family violence related conduct;
(ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)   efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the noncitizen’s migration status, should the non-citizen engage in further acts of family violence.
Paragraph 4 of the Direction contains this definition:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
Tribunal’s Consideration
The Respondent submitted that:[104]
“The Minister notes that while the Applicant was convicted of aggravated assault on a female in 1989[105], there is no information to suggest that this act of violence was committed against a partner or family member. However, the Minister also notes that records received from QCS suggest that the Applicant has been involved in incidents which may fall within the scope of family violence as defined under Direction 90 (paragraph 4(1)). Notably, reports have been made that the Applicant has been has been verbally abusive towards his daughter, that the Applicant possibly physically disciplines his daughter, and that the Applicant's daughter has recounted that the applicant has hit his partner[106]. The Minister therefore contends that the Tribunal should have regard to this consideration as there is information from independent and authoritative sources indicating that the Applicant has been involved in the perpetration of family violence (paragraph 8.2(2)(b)).”
[104] Respondent’s SFIC, paragraph [40].
[105] G7, page 46.
[106] SB99, page 602.
Oral testimony from the Applicant and Tina Taylor contradicted the evidence cited by the Respondent, while TU’s oral testimony did not canvass these matters.
Without additional evidence, the Tribunal considers that paragraph 8.2 is not enlivened.
Conclusion: Primary consideration 2: Family violence committed by the non-citizen.
This consideration carries a neutral weight.
Primary consideration 3: Best interests of minor children in Australia affected by the decision.
Paragraph 8.3 of the Direction requires decision-makers to determine, where relevant, if revocation is in the best interests of any minor children in Australia.
This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided.
If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.[107]
[107] The Direction, para 8.3(3).
In considering the best interests of the child, the Direction requires the following factors at paragraph 8.3(4) to be considered where relevant:
(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.
The Direction requires that the Tribunal determine whether non-revocation under Section 501CA is, or is not, in the best interests of a child in Australia who will be affected by the decision.
The evidence before the Tribunal identifies two relevant minor children:
(a)TU, Applicant’s daughter, born on 18 October 2012.
(b)IU, Applicant’s step-son, born in 2006.
The Applicant has, in his written submissions, also cited the best interests of a niece, a nephew, and a grandson (or great-nephew). The dates of birth of these children is unknown, and the name of the Applicant's claimed grandson (or great-nephew) is also unknown. As there is no specific evidence about the relationship the Applicant has with these children, or the likely negative impact of separation on the applicant's niece, nephew, or grandson (or great-nephew), the Tribunal considers that there is insufficient evidence to establish that their best interests will be adversely affected by the non-revocation of the Applicant’s visa cancellation.

In his Personal Circumstances Form, the Applicant wrote:[108]
“Myself and my daughter are like best friends. My role in my daughter's life was to take her to school and pick up her from school, to help her understand right from wrong on a daily basis, there wasn't a day that had gone by that I didn't see my [Redacted]. I would take her to play down the park, I would take it to see her friends also times to play with her friends and at times to include myself and play with her and her friends.
My daughter on a regular basis would say to me has she believes she suffered anger issues, thus I would explain of certain consequences in life if one were to explode( in anger) etc.”
and
“Upon a negative decision I am in the belief that the relationship between her mother and her would be in many ways destructible, I believe her learning at school would decrease, she would ultimately involve herself in school altercations, (fights) my daughter would even begin to break or destroy family possessions within her grasp.”
[108] G21, O2, page 106.
Tribunal’s Consideration
The Direction requires the Tribunal to treat the best interests of these minor children as a primary consideration.
The Tribunal will frame its consideration in terms of paragraph 8.3(4), acknowledging the delineation required by paragraph 8.3(3).
Paragraph 8.3(3) of the Direction states:
“If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.”
Paragraph 8.3(4)(a)
In relation to TU, the Applicant’s evidence, which was not substantively challenged, can be characterised as showing a long-standing, enduring and loving bond between father and daughter, aggravated by their current separation. The relationship is clearly parental and has had to contend with the Applicant’s incarceration and detention which appears to have cause TU distress and potentially contributed to her behavioural issues.
In relation to IU, the relationship is non-parental and not as close as that between the Applicant and TU. The Applicant's evidence, which was not substantively challenged, suggests that the Applicant is a male role model figure in IU’s life. It appears likely that this relationship has also been put under stress by the Applicant's incarceration and detention. The Tribunal considers that the nature and duration of this relationship does not have the same weight or depth as the relationship between the Applicant and TU.
Paragraph 8.3(4)(b)
The Applicant’s evidence establishes that, if he is back in the Australian community he intends to take on a positive parental and caregiver role in relation to TU.
The Tribunal considers, based on the Applicant’s oral testimony, that despite the Applicant’s age and criminal proclivities, he can play a positive parental role with TU in the future if allowed to remain in the Australian community.
The evidence regarding IU was less clear, although the conclusion can be drawn from the facts that the Applicant will remain a male role model figure for IU up to IU’s 18th birthday if the Applicant re-enters the Australian community.
Paragraph 8.3(4)(c)
The Tribunal considers, in the absence of specific evidence or submissions, that it is potentially the case that the Applicant’s prior conduct’s impact on each of the minor children would be negative.
However, the Tribunal is compelled to observe that, given the vehemence of the Applicant’s evidence about the adverse effects of his drug addiction on his life and health, he may also serve as a salutary lesson to each of the minor children.
Paragraph 8.3(4)(d)
The Applicant made several written submissions regarding the likely effect of any separation on TU. There were no matching submissions in relation to IU. The Applicant is particularly concerned that TU’s behavioural problems will worsen in his absence if deported, that she will become depressed and that she will be put at risk of an antisocial life.
The Tribunal accepts this submission and acknowledges the Respondent’s submission that:[109]
“With respect to the applicant's daughter, the Minister accepts that it is in the best interests of the child for the Applicant to remain in Australia.”
[109] Respondent’s SFIC, paragraph [45].
Paragraph 8.3(4)(e)
The Tribunal finds on the evidence that Tina Taylor currently fulfils a parental role for TU, and to a lesser extent, IU.
The Tribunal acknowledges that this is qualified by Ms Taylor working two jobs and notes that Applicant appears prepared to play a substantive parental role in relation to TU if allowed to re-enter the Australian community.
Paragraph 8.3(4)(f)
TU provided evidence which supports the view that enabling the Applicant to remain in Australia is in her best interests.
Paragraph 8.3(4)(g)
The Tribunal acknowledges the conflicting state of the evidence, described above, in relation to this paragraph. The Tribunal finds that the combined detailed evidence and denials of the Applicant and Tina Taylor outweighs the contradicting evidence.
Paragraph 8.3(4)(g)
The Tribunal acknowledges the conflicting state of the evidence, described above, in relation to this paragraph. The Tribunal finds that the combined detailed evidence and denials of the Applicant and Tina Taylor outweighs the contradicting evidence.
Tribunal findings: Best interests of minor children in Australia affected by the decision.
The Tribunal accepts that revocation of the delegate’s decision is in the best interests of the IU.
The Tribunal accepts that revocation of the delegate’s decision is in the best interests of the IU but gives this less weight than with TU.
Given the potential significance of the Applicant being in TU’s life in particular, this consideration provides significant and strong weight in favour of revoking the delegate’s decision to not revoke the cancellation of the Applicant’s visa.
Conclusion: Primary consideration 3: Best interests of minor children in Australia affected by the decision.
This consideration carries significant and strong weight in favour of revoking the delegate’s decision to not revoke the cancellation the Applicant’s visa.
Primary consideration 4: Expectations of the Australian community
Paragraph 8.4(1) of the Direction provides:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.”
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences in question 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 because of conduct in Australia or elsewhere, of the following kinds:
(a)acts of family violence;
(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;
(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;
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As with Clause 8.4(4) of the Direction, this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.
Clause 8.4(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[110]
[110] FYBR (2019) 272 FCR 454 (“FYBR”), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[111]
[111] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[112]
[112]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm stipulated in paragraph 8.4(1), the Tribunal now considers the guidance provided by paragraphs 5.2(2), (3), (4) and (5) of the Direction:
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 measureable 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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Tribunal has not found that the Applicant has committed serious crimes against women and acts of family violence. The Tribunal has further not found that the Applicant has committed any offences mentioned in sub-paragraphs (b) to (f) of the paragraph 8.4(2) of the Direction. Paragraph 8.4(2) of the Direction is not enlivened.
The next 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) and (5) 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 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;
(c)Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life; and
(d)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.
The Direction provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the strain community. 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 8.4 (1) – (3 from ) of the Direction], without independently assessing the community's expectations in the particular case."
Sub-paragraph (a) uses the term ‘limited stay visa’ which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes,
Section 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain, ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non-permanent or ‘temporary’ visas.
Tribunal’s Consideration
The Applicant held a Class BF Transitional (Permanent) visa. This appears to be a permanent visa allowing an indefinite stay in Australia.
This implies that sub-paragraph (a)’s lower tolerance does not apply.
The Applicant has lived in Australia since he was 2.5-year-old and his first offence (as juvenile) was not until he was 15 years old. Sub-paragraph (b) is not engaged but sub-paragraph (c) is. Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life and clearly the Applicant has done so.
Balanced against a consideration of sub-paragraph (c) is sub-paragraph (d). The Tribunal found the Applicant’s offending conduct to be very serious.
The Tribunal also observes the requirements of paragraph 8.4(3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that the Applicant poses a risk of re-offending. However, his commitment for his family and especially the wellbeing of his daughter act as mitigating factors to his risk of reoffending
The Tribunal is satisfied that the Applicant has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian government not to allow him to remain in Australia.
Conclusion: Primary consideration 4: Expectations of the Australian community
This consideration weighs significantly in favour of affirming the delegate’s decision to not revoke the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary at this point to consider the Other Considerations listed in paragraph 9 of the direction. The Tribunal now consider each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations.
Other Consideration(a): International non-refoulement obligations
Clause 9.1 of the Direction provides:
1A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
2In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
3However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
4Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
5International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
6It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
7Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
8If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non-refoulement obligations.

The Applicant has not made any claims which require assessment in relation to Australia’s international non-refoulement obligations, nor does the other available evidence indicate that such an assessment is necessary in this case.
Tribunal Finding: Other Consideration (a): International non-refoulement obligations.
In the absence of evidence, the Tribunal finds that this Other Consideration (a) is not relevant and carries a neutral weight.
Other Consideration (b): Extent of impediments if removed.
Clause 9.2(1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant’s written submissions
The Applicant has submitted in his 29 March 2022 Personal Circumstances Form that he suffers from chronic bronchitis, emphysema and varicose veins.[113]
[113] G21, O2, page 112.
The Queensland Corrective Services reports state that the Applicant advised:[114]
"… he has had a hip replacement however the parts that were used have been recalled and he never went back for surgery to replace them. He stated he is now "paying the price", having been hospitalised 10 times in last year due to significant pain. He reported he is supposed to be linked with a specialist but is yet to do this. (The Applicant) reported he is medicated with Panadeine Forte and indicated sometimes the pain is excruciating to the point he cannot get out of bed.”
[114] SB99, page 586.
In his 29 March 2022 Personal Circumstances Form the Applicant states:[115]
"I can't read or write, or speak Italian, also from being apart from my daughter I would not only fear for her well-being but, I would begin to start using narcotics is all I have left in life is here in Australia”
[115] G21, O2, page 113.
He went on to state in response to the question "Are there any other problems you would face if you have to return to your country of citizenship?”[116]
"In my opinion I would face the every day to day obstacles that would become problems because of the strong barrier there is between myself and my country of birth."
[116] G21, O2, page 113.
The Applicant went on to observe in his Personal Circumstances Form that his father and sister are the only direct family left alive and both reside in Australia.
In his undated personal statement, he states:[117]
"I arrived in Australia in 1969 at the age of 2 1/2 years old, I've been a recipient and done my day care in Australia, I've done all my schooling from level 1 up to level 10 in Australia, I work [sic] several jobs in the community and paid my taxes as others than [sic] the community are [sic] expected. I've never left Australia since my arrival in 1969.”
[117] G21 O3, page 116.
The Respondent’s written submissions
The Respondent made the following submissions on this point:[118]
“[58] The applicant is a man of 56 years, and there is evidence of drug misuse, and diagnoses for chronic bronchitis, emphysema, and varicose veins (paragraph 9.2(1)(a)). The Minister accepts the Applicant will likely face practical, financial and emotional hardship on return to Italy, and will likely face cultural and language barriers. However, the Applicant will have access to health and welfare services available to others in Italy (see SB108-SB110).
[59] Noting that the Applicant has lived in Australia for a lengthy period, and taking into account his drug use history, and lack of familial supports in Italy, the Minister accepts that the Applicant will face difficulties in re-establishing himself in Italy. However, the Minister contends that this consideration should not attract overwhelming weight in the Applicant's favour, and does not outweigh the heavy weight of the primary considerations of the protection of the Australian community and expectations of the Australian community.”
[118] Respondent’s SFIC, paragraphs [58]-[59].
The Respondent’s oral submissions
The Respondent made the following oral submissions:[119]
“As to the extent of impediments, I think it would have to be accepted that the greatest impediment here is what would be a language barrier for Mr Canetto - his evidence being that he doesn’t speak Italian. That would post certainly, initially, a considerable barrier to his integration into the Italian society, if removed back there. And I accept that Mr Canetto has raised certain health issues which, without wishing to downplay those, that none of which appear to be life threatening as the subject of sort of urgent medical intervention and the like. But, nevertheless, those are matters that will be taken into account as potential impediments.
What I would say is there is some evidence in the material before the tribunal that was provided on behalf of the Minister to assist, I think, which is towards the end of the supplementary documents around - some general information around social services and health in Italy, which I think really the gravamen of that, is essentially that there would be some supports available to Mr Canetto in Italy. And, really, I’d submit that the largest impediments too, if removed, would be the lack of social support and the language barrier. And so that’s something that will weigh in Mr Canetto’s favour, albeit, that I would submit that the evidence doesn’t get to the level of suggesting that those are going to be insurmountable difficulties. There would be access to health and welfare services, similar to those available to others in Italy.
And, you know, after a period of transition I think the tribunal would be entitled to find that Mr Canetto is likely to be able to integrate back into Italian community - into Italian society to some degree - albeit appreciating that those difficulties that I have spoken of would - you know - exist predominantly at the time of initial removal.”
[119] Transcript, page 109, line 24 – page 110, line 3.
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that the Applicant, if removed from Australia to Italy, will face in establishing himself and maintaining basic living standards (in the context of what is generally available to other Italian citizens), taking the specific factors below into account.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
The Applicant is 57 years of age.
The Tribunal considers that the Applicant suffers from common age-related conditions, although it is acknowledged that there was no expert evidence before the Tribunal as to the Applicant’s health.
In the absence of such evidence, the Tribunal accepts that the Applicant suffers from emphysema, bronchitis, varicose veins and has hip issues. The Tribunal acknowledges the Respondent’s submission that none of these conditions, while serious, is life-threatening.
The Tribunal accepts that not being able to return to Australia has the potential to cause the Applicant emotional hardship, as well as anxiety for his family in Australia.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that the cultural and any linguistic difficulties the Applicant is likely to experience will be material, of likely sustained duration and significant.
The Applicant left Italy at the age of 2. Accepting his evidence, the Tribunal observes that he has never learnt to speak, read or write Italian.
The Tribunal takes note of research showing that optimal age to learn another language is between 4 and 8, and that research into the capacity to learn languages in middle age is in its infancy.[120]
[120] Kliesch, M., Giroud, N., Pfenninger, S. E., & Meyer, M. (2018). Research on second language acquisition in old adulthood: What we have and what we need. Third age learners of foreign languages, 48-76.
The Tribunal considers that the issue of language in the case of the Applicant, concomitant with that of adapting to a different and effectively a new culture, constitute sustained, significant and substantial barriers in the path of returning the Applicant to Italy.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal considers that, as the Applicant has effectively never lived as an adult in Italy, he is likely to experience much more than an initial lack of social and economic support due to the language and cultural barriers.
The Tribunal observes that the Applicant has no personal support from family or friends available to him in Italy and that he would also suffer adverse psychological effects from being separated from his wife, child and other immediate family members by being removed from Australia.
The Tribunal has considered the general information included in the Supplementary G Documents and referenced by the Respondent in in its written submissions.[121]
[121] SB, S109, S110 and S111 at pages 618-638.
The Tribunal does not consider itself expert in the Italian social welfare system. However, a review of the information provided by the Respondent suggests that the Applicant may fall into several lacunae in the Italian system.
The Applicant has never worked in Italy, which suggests that he cannot rely on the Italian contributory social security system which is funded by contributions from employees and employers.[122]
[122] S109, page 618.
Instead, the Applicant would appear, on a general review, to fall under the Italian Social Allowance or Assegno Sociale.[123]
[123] S110, page 621.
However, the first requirement for entitlement to the Social Allowance is that the recipient must be at least 67 years old.[124]
[124] S110, page 622.
It may be that the Applicant could avail himself of the Citizenship Guaranteed Minimum Income or Reddito di Cittadinanza, but entitlement to this is stated to be conditional on the beneficiary’s income (means-tested) and pro-active job seeking.[125]
[125] S110, page 621.
Considering the Applicant’s health issues, language and cultural barriers and lack of any significant employment experience in the past 15 years, the Tribunal finds it difficult, without other evidence before it, to understand how the Applicant will easily find employment in Italy.
The above suggests that the economic support available to the Applicant in Italy may be lacking.
Tribunal’s analysis and consideration
The Tribunal has considered the extent of any impediments that the Applicant, if removed from Australia to Italy, will face in establishing himself and maintaining basic living standards, taking into account the specific factors set out in paragraph 9.2(1).
Tribunal finding: Other Consideration (b) Extent of impediments if removed.
Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal finds that this consideration carries heavy and substantive weight in favour of revocation of the delegate’s decision under review.
Other Consideration (c): Impact on victims
Clause 9.3(1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Tribunal finding: Other Consideration (c): Impact on victims.
In the absence of evidence, the Tribunal finds that this Other Consideration (c) is not relevant and carries a neutral weight.
Other Consideration (d): Links to the Australian community
Paragraph 9.4 of the Direction requires that decision-makers must have regard to an Applicant's links to the Australian community.
There are two factors which the Tribunal must assess in determining the level of weight allocable to Other Consideration (d). These are:
(a)Paragraph 9.4.1: the strength, nature, and duration of ties to Australia; and
Paragraph 9.4.2: the impact on Australian business interests if an applicant cannot remain here. The Tribunal will consider each of these in turn.
Paragraph 9.4.1 Strength, nature and duration of ties to Australia
Paragraph 9.4.1 of the Direction states:
1Decision-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.
2Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
In addressing Paragraph 9.4.1(1), the Tribunal will consider the three elements:
(a)First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, “immediate family members” where those people have a right to remain in Australia indefinitely.
(b)Second, it is necessary consider the impact of a non-revocation decision by considering the strength, nature, and duration of any other ties the Applicant has to the Australian community.
(c)Third, it is necessary to assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia.
The Tribunal will address each component in turn.
This first exercise requires identifying the Applicant’s immediate family in Australia.
Immediate family
The Applicant has immediate family members in Australia, being his wife, his daughter, his step-son and his father. The Applicant appears, from the evidence, to have fallen out of contact with his sister and her family.
Other ties
From the evidence, the Applicant appears to have few, if any, other ties to Australia beyond his immediate family.
The Tribunal acknowledges the exceptions to this contained in the statements of support from the Applicant’s sisters-in-law, Sarah Junge[126] and Bernadette Junge[127], as well as Mr Greg Moran:[128]
The strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia
[126] G29 & G31.
[127] Exhibit 12.
[128] Ibid.
From the evidence, the Applicant appears to have few, if any, other ties to Australia beyond his immediate family.
Addressing Paragraph 9.4.1(2), the Tribunal must consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, the Applicant’s length of residence in Australia and whether he has contributed positively to the Australian community:
(a)As noted above, aside from his immediate family, the Junge sisters and Mr Moran, the evidence suggests that the Applicant has few, if any, ties to the Australian community.
(b)His length of residence – from January 1969 to the present – is extensive.
(c)There is limited or no evidence of the Applicant making any positive contributions to the community in the past through his employment history or community involvement.
Tribunal finding: Paragraph 9.4.1 Strength, nature and duration of ties to Australia
The Tribunal finds that the Applicant has few, if any, other ties to Australia beyond his immediate family.
However, the Tribunal recognises the negative effect of non-revocation on friends and community members in Australia, who will be upset or disappointed by a non- revocation decision.
The Tribunal finds that this consideration weighs in the Applicant’s favour but is not of significant weight.
Paragraph 9.4.2: the impact on Australian business interests if the applicant cannot remain here.
Paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with reference to any impact his removal may have on, “Australian business interests”.
There is very limited evidence of the Applicant making any positive contributions to the community in the past through his employment history or community involvement.
Tribunal finding: Paragraph 9.4.2: the impact on Australian business interests if the applicant cannot remain here.
The Tribunal finds that paragraph 9.4.2 has little to no weight towards revocation of the delegate’s decision to cancel the Applicant’s visa.
Tribunal Finding: Other Consideration (d): Links to the Australian community
The Tribunal finds that, considered in its entirety, Other Consideration (d) has some, but not determinative, weight in favour of revocation of the delegate’s cancellation decision under review.
Findings: Other Considerations
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
Other Consideration (a) - international non-refoulement obligations:
·This consideration is not relevant and carries no weight.
Other Consideration (b) - extent of impediments if removed:
·This consideration carries heavy and substantive weight in favour of revocation of the delegate’s decision under review.
Other Consideration (c) - impact on victims:
·This consideration is not relevant and carries no weight.
Other Consideration (d) – links to the Australian community:
·This consideration has some, but not determinative, weight in favour of revocation of the delegate’s decision under review.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[129]
[129] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
Primary Consideration 1- protection of the Australian community from criminal or other serious conduct:
·This consideration weighs heavily against revocation of the delegate’s decision to not revoke the cancellation of the Applicant’s visa.
Primary Consideration 2- whether the conduct engaged in constituted family violence:
·This consideration carries a neutral weight.
Primary Consideration 3- the best interests of minor children in Australia:
·This consideration carries significant and strong weight in favour of revoking the delegate’s decision to not revoke the cancellation of the Applicant’s visa.
Primary Consideration 4 – Expectations of the Australian Community:
·This consideration weighs significantly in favour of affirming the delegate’s decision to not revoke the cancellation of the Applicant’s visa.

The Tribunal has also set out above the weight attributable to the other considerations and the additional consideration.
A comprehensive, holistic and integrated view of the primary considerations, the other considerations in the Direction, together with the additional consideration favours on balance setting aside the delegate’s decision to not revoke the cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the original visa cancellation.

I certify that the preceding two hundred and fifty-seven paragraphs (257) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

..............[SGD]...........
Associate
Dated: 9 March 2023

Date of hearing: 4, 5 & 12 January 2023

The Applicant:
Self-represented

Solicitor for the Respondent: Mr David McLaren (Minter Ellison Lawyers)
Annexure A – exhibit register

Exhibit Number

Description of Exhibit

Party

Date of Document

Filing Date

1

G Documents

(bookmarked G1-G43, paged 1-187)

R

Various

16 Nov 2022

2

Statement of Facts, Issues and Contentions

R

15 Dec 2022

15 Dec 2022

3

Supplementary G Documents

(bookmarked S1-S111, paged 1-638)

R

Various

16 Dec 2022

4

Ms Taylor Silvana’s Year 4B Report Summary

A

8 Dec 2022

27 Dec 22

5

Letter of Support for Applicant: By Ms Tina Taylor

A

23 Dec 22

27 Dec 22

6

Letter of Support for Applicant: By Mr Hayden Taylor

A

23 Dec 22

27 Dec 22

7

Drawing made by Applicant’s daughter

A

Undated

27 Dec 22

8

Cover page of course- Positive Choices

A

Undated

28 Dec 22

9

Cover page of course-Coach yourself to wellness

A

Undated

28 Dec 22

10

Applicant’s statement of being sexually abused in prison

A

28 Dec 22

28 Dec 22

11

Applicant’s statement about his current health issues

A

29 Dec 22

29 Dec 22

Other Evidence

12

Applicant’s Additional Supporting Material:

1 – Copy of Daughter’s Birth Certificate and cover Email

2 – Copy of Mother’s Birth Certificate and cover Email

3- Email of Support from Mr G Moran

4- Email of Support from Ms B Junge

A

-

30 Dec 2022

13

Statement from Ms S Taylor and Cover Email

A

4 Jan 2023

4 Jan 2023

ANNEXURE B: short form decision

Exhibit Number	Description of Exhibit	Party	Date of Document	Filing Date
1	G Documents (bookmarked G1-G43, paged 1-187)	R	Various	16 Nov 2022
2	Statement of Facts, Issues and Contentions	R	15 Dec 2022	15 Dec 2022
3	Supplementary G Documents (bookmarked S1-S111, paged 1-638)	R	Various	16 Dec 2022
4	Ms Taylor Silvana’s Year 4B Report Summary	A	8 Dec 2022	27 Dec 22
5	Letter of Support for Applicant: By Ms Tina Taylor	A	23 Dec 22	27 Dec 22
6	Letter of Support for Applicant: By Mr Hayden Taylor	A	23 Dec 22	27 Dec 22
7	Drawing made by Applicant’s daughter	A	Undated	27 Dec 22
8	Cover page of course- Positive Choices	A	Undated	28 Dec 22
9	Cover page of course-Coach yourself to wellness	A	Undated	28 Dec 22
10	Applicant’s statement of being sexually abused in prison	A	28 Dec 22	28 Dec 22
11	Applicant’s statement about his current health issues	A	29 Dec 22	29 Dec 22
Other Evidence
12	Applicant’s Additional Supporting Material: 1 – Copy of Daughter’s Birth Certificate and cover Email 2 – Copy of Mother’s Birth Certificate and cover Email 3- Email of Support from Mr G Moran 4- Email of Support from Ms B Junge	A	-	30 Dec 2022
13	Statement from Ms S Taylor and Cover Email	A	4 Jan 2023	4 Jan 2023

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2022/8961

General Division )
Re: Mauro Canetto
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
ORDER
TRIBUNAL:              Member D Cosgrave
DATE:   18 January 2023
PLACE:                    Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 26 October 2022 to not revoke the cancellation of the Applicant’s visa and substitutes a decision to revoke the mandatory cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
….......[SGD]................
Member D Cosgrave

[2023] AATA 367

18 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date of hearing:	4, 5 & 12 January 2023
The Applicant:	Self-represented
Solicitor for the Respondent:	Mr David McLaren (Minter Ellison Lawyers)

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/8961
General Division	)