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

[2023] AATA 736

Ceitinn and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 736 (23 March 2023)

Division:GENERAL DIVISION

File Number:          2022/10657

Re:Stiofan Ceitinn

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date of Decision:               23 March 2023

Date of Written Reasons:      12 April 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 29 December 2022 and substitutes it with a decision to revoke the cancellation of the Applicant’s visa.

...............................[SGD]...................................

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Partner (Class BS) (Subclass 801) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – decision under review set aside and substituted.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Migration Regulation 1994 (Cth)

Secondary Materials

Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

12 April 2023

INTRODUCTION

1. Mr Stiofan Ceitinn (‘the Applicant’) is a 41-year-old man, born in Ireland in December 1981. His initial date of arrival was November 2003. There followed some 37 departures from Australia culminating in a final return date of August 2015. Across that approximate 12-year period, the Applicant spent approximately 400 days outside Australia. Despite the significant number of movements in and out of Australia, it suffices to say there was no contest between the parties that the Applicant has resided on a more or less permanent basis in this country since his initial arrival.

2. The most recent visa held by the Applicant was a Partner (Class BS) (Subclass 801) visa (‘the Visa’). On 26 November 2020 while the Applicant was serving a custodial sentence, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’ or ‘the Minister’) mandatorily cancelled his visa pursuant to s 501(3A) of the Migration Act (1958) (Cth) (‘the Act’) because he did not pass the character test and was serving a full-time custodial sentence. On 18 December 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (‘Revocation Request’).[1] On 29 December 2022, the Respondent decided not to revoke the mandatory cancellation decision of 26 November 2020 (‘the Non-Revocation Decision’). On 30 December 2022, the Applicant lodged the instant application in this Tribunal seeking review of the Non-Revocation Decision. I am satisfied this Tribunal has jurisdiction to review the decision pursuant to s 501BA(1) of the Act.

   [1] Exhibit 1, pp 105-122.

3. The Hearing of this application proceeded before me on 9 and 10 March 2023. Oral evidence was received from:

   ·the Applicant;

   ·Mr Sean O’Dalaigh (a friend of the Applicant);

   ·Ms Lauren Hyland (a friend of the Applicant and parent of one of his Godchildren);

   ·Ms Katherine Walton (the Applicants ex-wife);

   ·Ms Janece Walton (the Applicants former mother-in-law);

   ·Mr Nathan Corbett (a friend of the Applicant); and

   ·Mr Chris Hemsworth (a friend of the Applicant).

4. The hearing also received written evidence and the totality of that material was consolidated into an agreed Exhibit List,[2] a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.

   [2] See Transcript, p 2, lines 16-46; p 3, lines 1-4.

   LEGISLATIVE FRAMEWORK

5. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   The Minister may revoke the original decision if:

   …

   (b)the Minister is satisfied:

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

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

6. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised.

7. There are therefore two issues presently before the Tribunal:

   (a)whether the Applicant passes the character test; and

   (b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

   Does the Applicant pass the Character Test?

8. In their respective Statements of Facts, Issues and Contentions (‘SFIC’) the parties agree that the Applicant does not pass the character test.[3] Accordingly, it can be safely found that this Applicant does have a ‘substantial criminal record’ due to his being sentenced to a term of imprisonment of eight years imposed on him in October 2020. I find that he does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

   [3] Exhibit 19, p 5, [23]; Exhibit 13, p 2.

   Is there another reason for the revocation of the cancellation of the Applicant’s visa?

9. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[4]

   [4] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

10. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

11. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the strength, nature and duration of ties to Australia:

    (4)the best interests of minor children in Australia; and

    (5)expectations of the Australian community.

12. Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:

    (a)legal consequence of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

13. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

14. The material does not contain any reference to the Applicant’s commission of any offences outside of Australia. In terms of offending within Australia, the Applicant’s criminal history runs (in terms of sentencing episodes) from May 2009 to October 2020. It involves the commission of some eight offences that were dealt with across six separate sentencing episodes. With the exception of his final two convictions dealt with by a Queensland District Court in October 2020, the Applicant’s history of criminal offending in Australia is largely unremarkable. His criminal history in Australia can be stated thus:

Court	Date	Offence	Sentence
Queensland District Court	October 2020	Fraud – Dishonestly incudes delivery of property value of/over $30,000 (2 charges)	8 years imprisonment Eligible for parole after 2 years 6 months
Queensland Magistrates Court	January 2019	Breach of bail condition	Fined $400
Queensland Magistrates Court	November 2017	Breach of bail condition	Fined $300
Queensland Magistrates Court	August 2017	Breach of bail condition	Fined $300
Queensland Magistrates Court	June 2012	Commit public nuisance	Fined $500 In default imprisonment: 5 days
		Possessing dangerous drugs	Recognisance $900 Good behaviour period: 9 months Drug diversion
Queensland Magistrates Court	May 2009	Assault or obstruct police officer	Fined $200

1. The Applicant has also compiled a traffic history during his time in Australia. It runs from February 2008 until June 2018.[5] He has committed 11 speeding offences representing an accumulation of 16 demerit driving points. By far the most significant of his traffic offending involves his being detected (in June 2018) for driving under the influence of alcohol (over the high alcohol limit) with a blood alcohol concentration of 0.155. This reading is in excess of three times the legal limit. It resulted in his conviction and disqualification from driving for six months and a $1000 fine.[6]

   [5] Exhibit 18, pp 164-165.

   [6] Ibid, p 164.

2. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

   (a)the nature and seriousness of the non-citizen’s conduct to date; and

   (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

3. I will consider each in turn.

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

4. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

   (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

   (i)violent and/or sexual crimes;

   (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

   (iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

   (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

   (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

   (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

   (iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

   (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

   (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

   (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

   (e)the cumulative effect of repeated offending;

   (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

   (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

   (h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

   Paragraphs 8.1.1 Considerations

5. Paragraph 8.1.1(1)(a) of the Direction provides three categories of offending conduct that is viewed very seriously by the Australian Government and community. Having regard to the totality of the Applicant’s offending history, none of his offending falls within the auspices of this specific paragraph. For reasons I will enumerate later, this should not be construed as any type of concession or finding by this Tribunal that the totality of the Applicant’s offending should be found to be anything other than ‘very serious’.

6. Paragraph 8.1.1(1)(b) of the Direction refers to the types of crimes that may be considered serious by the Australian Government and its community. The Applicant has not committed any offence in the realm of causing another person to become a party to a forced marriage,[7] or being responsible for conduct grounding any finding that he does not pass an aspect of the character test that may be dependent on this decision-maker’s opinion;[8] or in relation to any crime committed during the Applicant’s time in immigration detention.[9]

   [7] Paragraph 8.1.1(1)(b)(i) of the Direction.

   [8] Paragraph 8.1.1(1)(b)(iii) of the Direction.

   [9] Paragraph 8.1.1(1)(b)(iv) of the Direction.

7. However, quite early in the offending history, the Applicant incurred a conviction for the offence of ‘assault or obstruct’ police officer. The circumstances of the offending appear thus in the relevant Queensland Police Court Brief document:

   ‘The defendant in this matter is Stiofan CEITTIN.

   At approximately 00:10 Hours on the 10th of January 2008 police from Surfers Paradise were patrolling on Surfers Paradise Blvd Surfers Paradise when they observed four males walking along the footpath causing a disturbance.

   One of the males was arrested for causing a public nuisance and was restrained by police, as this was been done the defendant has interfered with police by trying to pull the arrested male away from police and therefore obstructed police while they were performing their duties.

   The defendant was then arrested and taken back to Surfers Paradise Police station were he was processed before been [sic] taken to the Southport Watch house were he was formally charged with the matter now before the court.’[10]

   [10] Exhibit 18, p 4.

8. Further, the circumstances of what I will find to be the Applicant’s very serious fraudulent conduct dealt with by a Queensland District Court in October 2020 did draw a number of elderly victims into its orbit. Those elderly victims provided victim impact statements which appear in the material now before the Tribunal and which were tendered at the sentencing hearing. One of those statements is from a victim who is ‘about to attain the age of 80 and I am on a part pension…’[11] Another victim impact statement is from the surviving widow of a now-deceased victim who says that she and the victim were ‘…married in 1965.’[12]. A third victim says in her victim impact statement that she was ‘…then 75 Years old…’[13] at the time of the Applicant’s offending.

   [11] Ibid, p 114.

   [12] Ibid, p 117.

   [13] Ibid, p 125.

9. It can therefore safely be found that (1) the Applicant’s conviction for assault or obstruct a police officer; and (2) what I will find to be his very serious fraudulent offending squarely engages the auspices of paragraph 8.1.1(1)(b)(ii). As such, the offending must be found to be, at the very least, serious, more likely very serious.

10. Paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:

    (1)any violent offending he may have committed against women;[14]

    (2)acts of family violence;[15] and

    (3)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[16]

    [14] Paragraph 8.1.1(1)(a)(ii) of the Direction.

    [15] Paragraph 8.1.1(1)(a)(iii) of the Direction.

    [16] Paragraph 8.1.1(1)(b)(i) of the Direction.

11. The Applicant does not have any convictions for offending in the above categories. This means that this Tribunal can have regard to the totality of the sentences that were imposed on the Applicant for the purposes of this particular paragraph. As already mentioned, the convictions he received for the first six (out of eight) offences he committed were unremarkable. All of the sentences for those first six sentences are non-custodial and are predicated on the basis of ‘no conviction recorded, fined: $[XX]’. The fines range from $200-$900. There is also a reference to the Applicant being placed on a good behaviour recognisance as well as being referred to drug diversion. None of these sentences safely speak to the seriousness of the Applicant’s offending.

1. This position becomes markedly different when one has regard to the sentencing regime imposed by Her Honour Judge Loury QC in October 2020 for the Applicant’s very serious fraudulent conduct. There can be absolutely no doubt that Her Honour wanted to impose a sentence that she felt was (1) commensurate with the nature, extent and overall seriousness of the Applicant’s involvement in the fraudulent scheme; and (2) wanted that sentence to represent the Court’s condemnation of the Applicant’s conduct:

   ‘You, Mr Ceitinn, are described as the owner of the business which was a sophisticated criminal enterprise which, at its heart, was designed to make money by dishonest means. Whilst you were not physically present in the office during the weekdays, it is accepted that your involvement as an owner of the business was significant. You personally received more than $230,000.

   Whilst I accept that you are unlikely to reoffend, there nonetheless needs to be a strong deterrent element to the sentence that I impose. The conduct of the enterprise was predatory and well-organised. Punishment and denunciation also play an important role in the exercise of my discretion. The sentence I impose must condemn your conduct on behalf of the community. I have had regard to the appellate decisions that have been placed before me, which provide some guidance as to the appropriate level of sentence. I have also had regard to the single judge decisions that have been placed before me in relation to others who have been involved in this or a similar enterprise, which have also provided some guidance. It is consistency in the application of sentencing principles which the sentence I impose must reflect.

   Balancing all of those features up together, I consider that the appropriate head sentence for you to be one of eight years imprisonment, where the parole eligibility date after you have served two and a-half years of that sentence.’[17]

   [My emphasis]

   [17] Exhibit 1, p 43, lines 8-28.

2. The imposition of a custodial term is the last resort in the sentencing hierarchy. While the sentences imposed for his first six convictions were relatively unremarkable, there is no denying that the nature, extent and intended purpose of the sentencing regime imposed on him in October 2020 most certainly speaks to the very significant level of seriousness of the Applicant’s unlawful conduct. I am therefore satisfied that the auspices of this particular paragraph are engaged and that the sentence imposed on the Applicant by Judge Loury QC does militate in favour of a finding that the totality of his offending can now be found to be very serious.

3. Paragraph 8.1.1(1)(d) of the Direction compels an inquiry into the frequency of a non-citizen’s offending and/or whether there is any trend of increasing seriousness. The Applicant first came to Australia in November 2003. He was then aged 21 years. His first conviction here occurred in May 2009. He thereafter has convictions for the commission of an additional seven offences committed between December 2011 and August 2015. This is a pattern of offending involving the commission of a total of eight offences across a six year period. While an offending pattern of over one offence per annum could be regarded as, to some extent, ‘frequent’, this element is not the main one that speaks to the level of seriousness of the offending.

4. Rather, the very significant escalation of seriousness from the nature and style of the first six offences compared to the seventh and eight offences most certainly engages this paragraph and most certainly, speaks to the seriousness of the totality of the Applicant’s unlawful conduct. The first six offences involve conduct as diverse as several breaches of bail, the commission of a public nuisance offence, possession of dangerous drugs and the abovementioned assault/obstruct police officer offence. This offending stands in stark contrast to the nature, style and impact of the Applicant’s very serious fraudulent offending, which very seriously impacted some 160 victims and caused most, if not all, of them very serious financial harm.

5. I have no difficulty in making the following findings: (1) the Applicant’s offending pattern has been sufficiently frequent to engage the terms of this paragraph; and (2) there is most certainly a discernible trend of increasing seriousness in the offending pattern such as to attract the operative effect of this paragraph in favour of a finding that the offending must be found to be very serious.

6. Paragraph 8.1.1(1)(e) one need not delve too deeply into the abovementioned victim impact statements to glean cumulative effects from the Applicant’s offending. Here is a sample of what the victims have to say:

   ·‘There is no holiday on my horizon, not even a trip to Geelong, my childhood main town. I shop only Coles brand items. I have not bought fresh fruit or vegetables in many years. My car is a 1965 model and I must maintain it myself and it is a trial to say the least.’[18]

   [18] Exhibit 18, p 114.

   ·‘I just wanted to crawl into a hole and kill myself.

   Since the event

   I can't sleep

   I have trust issues

   I have no friends

   I have no job

   I have no car

   I have no house

   I have no money

   I have no relationship

   I have no life

   I have no interests

   I have no self worth

   I'm a mental basket case

   …

   I keep wondering how my life would be if I still had my savings. My house, my car, my partner, my job. Some days I get about 3 hrs Sleep. I'm just so tired…

   To make ends meet, I worked 4 menial jobs, living in a remote town, full time work is hard to find.’ [19]

   [19] Exhibit 18, p 115.

   ·The surviving spouse of a now deceased victim noted the following:

   ‘He also suffered bouts of anger along with depression.

   This eventually led to threats of suicide, three months in a Mental health facility and being on strong medication resulting in side effects of "Parkinsonisms”.

   His lack of desire to live, eat, interact with people etc.,I believe, finally led to his death on 2nd September 2019.’[20]

   ·‘…This caused immediate short and long term effects in both capital investment and undue suffering of this loss to my immediate family.’[21]

   ·‘The loss of money has had a detrimental affected on my life. Since the exposure to the fraud and theft of my money, the retirement I had planned for the rest of our lives, has now been placed on hold, forever.’[22]

   ·‘Apart from the emotional stress this scam has caused me gross embarrassment in front of my family and friends. This incident has not only impacted my life and my wife's, but other family members who see us struggling to enjoy a carefree retirement.’[23]

   ·‘Monies that should have been recouped to put back into my bank having been borrowed money that never was going to happen because of lies including in the deal a a [sic] quality brand computer sent to me, set up to start making money. And a daily phone service call from these “ Pranksters “ to make sure I could never lose.’[24]

   ·‘We are honest, hard working people and it devastated me that this family money was lost at a time in our lives when we really need it, heading up towards retirement.’[25]

   ·‘Since this event, I have lost trust in my own judgement and much of my sense of self-respect and self-worth I feel I have failed my partner and my family and I feel tremendous guilt at having caused a financial loss that has impacted on my family’s health and well-being.’[26]

   [20] Ibid, p 117.

   [21] Ibid, p 120.

   [22] Ibid, p 121.

   [23] Exhibit 18, p 122.

   [24] Ibid, p 125.

   [25] Ibid, p 126.

   [26] Ibid, p 128.

7. These victim impact statements were received and reviewed by Judge Loury QC who noted, amongst other things, a reality that no compensation had been offered or provided to any of the victims:

   ‘I have received victim impact statements in relation to a number of the complainants. They speak of not only the financial loss they have sustained which included, for some, the loss of savings and the loss of superannuation, but feelings of worthlessness that they have felt as a consequence of being duped. No compensation has been offered by any of you to them. The bank account of the enterprise had only $17,000 in it when the warrant was executed in August 2015.’[27]

   [27] Exhibit 1, p 42, lines 1-6.

8. It can therefore be safely found that the Applicant’s unlawful conduct has resulted in very significant harm to a large number of victims. Each type or sub-stratum of harm does, to my mind, constitute a ‘cumulative effect’ of the Applicant’s repeated offending in the realm of the very serious fraud in which he was involved. This paragraph speaks very loudly to a finding that the cumulative effects of the Applicant’s repeated offending most certainly do militate in favour of a finding that the totality of his unlawful conduct has been very serious.

9. The Applicant’s criminal history contains three entries for a breach of bail. Those breaches occurred in October 2015, October 2017 and November 2018. On one view it could be said that these three breaches are indicative of a failure by the Applicant to respect lawful authority. On the other hand, it should be remembered that the Applicant was on bail for something like five and half years and during this period he was required to report to his corrections officer over 600 times. We are talking about three breaches across over 600 compliance events. The Applicant accepted responsibility for the three breaches and, in his oral evidence in cross-examination, explained it thus:

   ‘MS ALLEN: All right, and you understand, don't you, that bail is something that operates within certain lawful parameters giving rise to lawful requirements?

   APPLICANT: Absolutely.

   MS ALLEN: So if a person doesn't observer [sic] the conditions of bail, there's an assumption by someone sitting where I'm sitting, that the person doesn't respect lawful authority.  And then we take that back and we marry it back to sailing close to the wind and respecting lawful authority?

   APPLICANT: Yes.

   MS ALLEN: How do you explain those breaches of bail referable to your now claimed position of wanting to keep things on the straight and narrow?

   APPLICANT: I can't take back the fact that I missed those bail reporting, I know I messed up.  And it was just human error, on all three occasions, I was reporting for a long long time, over 600 times, and like I submitted point five of those times I messed up, I missed out through human error.  And all I can say is that it was just genuine mistakes on all three occasions. And it was something that I repaired very quickly.’[28]

   [28] Transcript, p 30, lines 1-18.

10. Paragraph 8.1.1(1)(f): as mentioned earlier, the Applicant has something in the order of 37 departure/arrival events in his movement history.[29] His first conviction in Australia occurred in May 2009. Post that date, the Applicant departed/arrived in Australia on an additional 16 occasions. I have carefully looked through the material and cannot find any reference to any incoming passenger card copies which may engage the terms of this paragraph. The Respondent is not propounding the application of this paragraph to the instant facts. I will therefore proceed on the basis that it is not relevant for the instant determination.

    [29] Exhibit 1, pp 189-193.

11. Paragraph 8.1.1(1)(g): I have likewise searched through the material before me and cannot locate any formal warning in writing directed towards the Applicant about the consequences of further offending in this country in terms of his visa status to remain here. Paragraph 8.1.1(1)(g) can therefore be put to one side.

12. Paragraph 8.1.1(1)(h): There is nothing in the material suggestive of the Applicant’s commission of any offences in Ireland (or elsewhere) either prior to his arrival in Australia or following it. This paragraph can also be put to one side.

    Further observations of the nature of the Applicant’s offending

13. Thus far, I have described the Applicant’s unlawful fraudulent conduct as very serious but have done so in circumstances where that conduct does not fall within the types of offences that the nomenclature of paragraph 8.1.1(1)(a) of the Direction captures as ‘very serious’. There is no strict requirement on this Tribunal to identify conduct of the type described in paragraph 8.1.1(1)(a) for the purpose of classifying that conduct as being ‘very serious’. This is because the language of paragraph 8.1.1(1)(a) contains the words ‘without limiting the range of conduct that may be considered very serious…’. It is therefore correct and appropriate to look at the specific nature, circumstances and impact of unlawful conduct before the Tribunal and to form a view about its level of seriousness.

14. In its SFIC, the Respondent has helpfully summarised particular indicia of the Applicant’s unlawful and fraudulent offending which speak to a reality that it has been very serious.[30] For example:

    [30] Exhibit 19, pp 6-10, [28]-[29].

    ·the Applicant, as part of a joint criminal enterprise with two co-offenders, dishonestly induced citizens to purchase software relating to a particular modality of sports gambling;

    ·the dishonesty involved the deliberate making of false representations to victims about the functional capacity of the software;

    ·specifically, the software was falsely represented as a mathematical formula allowing the user to place different bets on the same sporting event and to emerge with a profit regardless of the outcome. The Applicant accepted that bookmakers are aware of this method and deploy countermeasures against its usage;

    ·a further software package was promoted to victims involving automated gold trading. The software was said to apply algorithms to find and execute profitable trades in gold commodity markets across the world. At the time of its promotion to victims, the Applicant was aware that the software was flawed because it was operationally predicated on gold prices derived from an incorrect timescale which had no connection to real world commodity trading;

    ·the unlawful activity extended to the establishment of fake websites, fake forums, fake reviews and fake references in external publications. These falsities were perpetuated in brochures which postulated false performance targets and outcomes said to be achieved by the software;

    ·some 160 victims were defrauded of $2,101,905 in relation to the sports betting software. Some 10 victims were defrauded to the extent of $117,000 as a result of the software relating to the gold trading;

    ·the Applicant was sentenced on the basis that (1) he personally received more than $230,000 from the unlawful activity; and (2) that no compensation was offered or paid to the victims;

    ·during his own evidence at the Hearing before me the Applicant acknowledged that victims needed to spend significantly more time using the software to achieve the outcomes represented to them:

    ‘MS ALLEN: But safeguarding the product that went to the people, that went to the victims, there was a way of making that 100 per cent safe back then?

    APPLICANT: It's basically for them to understand the expectations, you know.  We were just advertising, like listen, you only two or three hours a week, you can make $60,000 to $80,000 a year, you know, all these sort of scenarios, people get excited and they buy.  Now they spend more than two hours a week and they're like, you told me this was only going to take two hours, realistically it's 20 hours, 25 hours, and you're still not going to make $60,000 to $80,000, you're wanting to be looking at making yourself $10,000 to $20,000 - - -

    MS ALLEN: And you say now, you should have told them that back then?

    APPLICANT: Absolutely.‘[31]

    [31] Transcript, p 31, lines 17-27.

    Conclusion about the nature and seriousness of the Applicant’s conduct

15. I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction. The relevant paragraphs applicable to the instant facts, including the indicia of the Applicant’s offending I have described in the immediately preceding paragraph [39], safely lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

16. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.

17. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)information and evidence on the risk of the non-citizen re-offending; and

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

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

    The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

18. As I have already mentioned, the first six of the Applicant’s convictions derive from mostly unremarkable offending. This can also be gleaned from the nature of the punishments imposed for those six offences, none of which involve custodial time, all of which involve the non-recording of the conviction and were punished by either fines and/or a good behaviour recognizance and/or placement on a course of drug diversion. At worst, further offending of this type would involve the community’s police apparatus dealing with things as desultory as apprehending a person who breached their bail, dealing with a person who refused to follow a lawful command and otherwise dealing with someone for low-level public nuisance offending and/or possession of illicit drugs.

19. It suffices to say that the nature of the harm resulting from the commission of further such offences (including his drink-driving offence) will be primarily limited to consumption of the community’s policing/law enforcement and judicial sentencing resources. There is little or nothing in the material to suggest that the offending impacted a particular individual victim(s) or that it was targeted towards a particular sector of the community.

20. The situation is significantly different with reference to the paradigm of the Applicant’s fraud-type offending. This was offending that had a deliberate randomness about it that could have affected virtually any adult person in the community. But for its detection and prosecution, the unlawful activity could have persisted for a lot longer. The victims suffered materially quantifiable loses in circumstances where the Applicant knew this would occur and he otherwise intentionally predicated promotion of these software packages being well aware of this. The logistical operation behind the enterprise was very sophisticated requiring the engagement of some 25 staff, specific premises together with a complex methodology of inducing victims into the fraud.

21. There is no requirement to recount the findings of Judge Loury QC as they appear in her sentencing remarks about the nature of the harm suffered by the victims. There is surely little or nothing the Applicant can say against the proposition (and finding) that were he to again engage such conduct, the harm that would befall the Australian community would be so serious that any risk of its recommission would be unacceptable. I so find.

1. I am therefore satisfied that were this Applicant to re-commit his very serious fraudulent offending, there would be very serious and quantifiable material (i.e financial) loss to those victims together with (as was seen from a number of the victim impact statements) very serious harm to the psychological wellbeing of victims. It is not a stretch of the evidence to suggest (and find) that such psychological harm could, quite conceivably, rise to a catastrophic level.

   The likelihood of the non-citizen engaging in further criminal or other serious conduct

2. In her sentencing remarks, Judge Loury QC accepted that the Applicant was ‘unlikely to reoffend’. Her Honour also took into account that the Applicant’s plea of guilty to the two counts saved the public the cost of a four month trial together with the necessity of any of the victims being called to give evidence about the loses they incurred. Her Honour also noted:

   ‘I have read the many references provided by people who think highly of you. You are described as kind and caring, reliable, hardworking, intelligent and loyal. You have participated in community minded endeavours. You are described as being remorseful and I accept that you are.’[32]

   [32] Exhibit 1, p 42, lines 1-4.

3. In the Applicant’s SFIC there is reference to externally assessed risk processing conducted upon him by the Queensland Department of Corrective Services. That Department’s methodology in assessing recidivist risk is aptly explained in the following extract from the material before:

   ‘QCS[33] use two Risk of Reoffending tools to screen for the risk of reoffending. These tools also assist in determining the required access to rehabilitation programs in custody and the level of service required for case management in the community. Both tools were developed by Griffith University and validated on a sample of prisoners and offenders in Queensland.

   [33] Queensland Corrective Services.

   The ‘Risk of Reoffending-Prison Version’ (RoR-PV) is validated for use with prisoners, to  assess the risk of general re-offending, post release from prison. The Risk of Reoffending-Probation and Parole Version (RoR-PPV), is used to calculate the likely risk of general re-offending for offenders who commence supervision in the Probation and Parole Service.  Both Risk of Reoffending tools are automatically calculated, using data held in the Integrated Offender Management System. The Risk of Reoffending tools are not specifically designed to assist in making assessments of parole eligibility, when making pre-sentencing decisions, or to provide assessments of dangerousness. Nor do the tools predict technical breaches of parole.

   An offender subject to community supervision will be assigned a level of service upon administration of the Risk of Reoffending (RoR-PPV), or when an offender is moved in from custody (based on RoR-PPV score). The level of service guides the intensity and activities undertaken with each parolee during supervision. The higher the risk, the more intensive the supervision becomes. The level of service is determined by the offender’s RoR-PPV score, order type, and offence. In the event that a level of service change is required sources of information may include advice from Courts, police, offender behavior records, intelligence, or specialized assessment outcomes. The QCS operational practice guidelines provide the following table demonstrating how the level of service is assigned according to the Risk of Reoffending scores.

Level of Service	RoR-PPV	RoR-PV	Excluding Factors
Low risk	1-7	1-4	·           Intensive Corrections Order ·           Board Ordered Parole ·           Serious Violent Offenders (declared) ·           Current or previous sex offence ·           DPSOA ·           Current conviction of an exclusionary offence
Standard	8-11	5-12	·           Serious Violent Offenders (declared) ·           Current or previous sex offence ·           DPSOA
Enhanced	12-15	13-17	·           Serious Violent Offenders (declared) ·           DPSOA
Intensive	16-20	18-22	·           DPSOA
Extreme	RoR – irrelevant		·           Any order excluding DPSOA

…’[34]

[34] Extracted from Queensland Parole System Review – Issues Paper – August 2016, pp 16-17.

1. In the relevant Queensland Corrective Services document relating to the Applicant, the following appears as a risk of reoffending score assessment: ‘You have been assessed as having a Risk of Reoffending (RoR-PV) score of 1 which indicates you fall into the category of prisoners who pose a low risk of further general offending.’[35] To the best of my understanding of the material, the Applicant’s recidivist risk classification has not altered since the time the abovementioned was made. The Applicant remains within the lowest possible level of recidivist risk as determined by the abovementioned methodology. This finding squares with Judge Loury QC’s assessment of the Applicant’s recidivist risk at the time of his sentencing for the fraud-based offences.

   [35] Exhibit 1, p 62.

2. Further in his SFIC, the Applicant confirms that he is remorseful for his wrongdoing. He takes issue with a contention appearing in the Respondent’s SFIC wherein the Respondent suggests that the Applicant’s remorse should not be taken at face value because in submissions that he put to the delegate, the Applicant sought to suggest that the victims of the fraud-based offending were not vulnerable because they had ‘buyer beware’ rights of their own before they became involved in the scheme and thereby suffered loss. In his SFIC, the Applicant seeks to remediate any adverse impact of the Respondent’s submission by purporting to suggest that his previously engaged legal representatives were solely responsible for making this suggestion at an earlier stage of these proceedings. Such an argument has little or no traction in my view. If the Applicant is going to allege some kind of shortfall or inadequacy in the conduct of his matter by any previous legal representatives then those representatives must be first afforded an opportunity to explain their conduct to this Tribunal prior to the making of any adverse finding. No such evidence was adduced by the Applicant.

3. However, the Applicant appeared to change his position at the Hearing on this ‘Buyer Beware’ point and, to my mind, he adequately did so. This is what transpired during cross-examination:

   ‘SENIOR MEMBER: All right, so could you explain what your trying to say there, when you say you wish your then lawyer had not referred to those buyer beware principles, what are you saying there, so that I'm clear about it?

   APPLICANT: Just that phraseology, "buyer beware" indicates that they should have - like it's basically passing the book to them.  And I believe that that shouldn't apply to them, even if buyer beware was still relevant in this day and age, at the end of the day they were induced by the marking concepts that I used to purchase the software.  So I don't believe that buyer beware principle should have been applied.  These consumers purchased through no fault of their own. 

   SENIOR MEMBER: Like purchased?  No one forced them to purchase?

   APPLICANT: I agree with that.  But at the end of the day, they were doing it on the proviso they were going to get something that they didn't really get.

   SENIOR MEMBER: Well the fraud is this, isn't it, that you knew that you were giving them something they thought they were getting, but not actually getting?  That's the essence of it?

   APPLICANT: Yes.’[36]

   [36] Transcript, p 27, lines 6-22.

4. In terms of independent clinical or medical information about the Applicant’s recidivist risk he says the following in his abovementioned affidavit made on 30 January 2023:

   ‘I managed to get my Psychologist to call into the prison last week to discuss the remorse I feel for my clients… I did, however find it productive to speak to my Psychologist about emotional topics like the remorse I feel for my clients.…

   …

   It is now our plan to continue working with the Psychologist for the transition of when I get out of jail and we all hope we can attend these sessions together as a family for optimum effect’[37]

   [37] Exhibit 11, pp 5-6, [17] and [19].

5. The psychologist to which the Applicant refers is Ms Kirralee Taylor of ‘Outreach Mental Health’. Her report appears in the material.[38] Ms Taylor confirms that the Applicant attended six telephone sessions with her between July and September 2020. She also confirms that the Applicant’s daughter and his ex-wife (and biological mother of the daughter) also attended some of the later sessions. She is of the view that the Applicant has ‘shown a genuine remorse for his crime…’[39] She concludes her report by observing that the Applicant:

   ‘[The Applicant] has also made a commitment to continue with the support after he is released from prison. I am hopeful that ongoing engagement in therapy after his release will help [the Applicant] to continue with the positive progress that he has made. I am also hopeful that [the Applicant] can continue to live in Australia being a supportive father to his daughter and a productive contributing member of the community’[40]

   [38] Exhibit 10.

   [39] Ibid, p 1.

   [40] Exhibit 10, pp 1-2.

6. It should be noted that Ms Taylor was not called to give oral evidence and the Respondent did not have the opportunity of testing her evidence in cross-examination.

7. During the Applicant’s oral evidence given in cross-examination, he was asked about his level of recidivist risk. He readily accepted that he committed these fraud offences for the specific purpose of personal financial gain. He said that he enjoyed working in an environment where other people relied on him and that this was a paradigm he did not want to easily surrender:

   ‘MS ALLEN: Is it fair to say that in part you were motivated by financial gain?

   APPLICANT: Definitely.

   MS ALLEN: And in your opening statement you refer to the fact that you were used to having power and its not something you wanted to give up easily.  Can you expand on that?

   APPLICANT: That's exactly what I was just commenting on.  Just having that amount of people depending on you, like just having that kind of respect I guess from your piers [sic].’[41]

   [41] Transcript, p 11, lines 32-39.

8. He was then asked why he is not likely to reoffend in the future and responded thus:

   ‘MS ALLEN: Why do you say you won't reoffend in the future?

   APPLICANT: I just have absolutely no reason to reoffend.  I'm a pretty intelligent guy, I've, you know, got plenty of opportunities out there.  I can make $230,000 over an 18 month period in a reputable job, and that's what I intend to do.

   MS ALLEN: Presumably, could have done the same before?

   APPLICANT: I sure could.  That was my mistake.’[42]

   [42] Transcript, p 11, lines 41-47.

9. He was then taken to his engagement with the abovementioned psychologist Ms Taylor. He conceded that his initial engagement with Ms Taylor occurred at around the time he was due to go into criminal custody at the point at which he was sentenced by Judge Loury QC. He confirmed that he has had more recent engagement with Ms Taylor. This is confirmed in her abovementioned written report made on 23 January 2023 wherein Ms Taylor said:

   ‘During our most recent session on the 19/01/23 [the Applicant] reflected on his life over the last 10 years and the crime that he committed and the impact that it had on his victims. [The Applicant] expressed sincere and genuine remorse for his actions and articulated clearly the regret that he has for not only the community members affected by his actions but also the impact on his own life and the people closest to him. [The Applicant] stated that being incarcerated has given him a lot of time to reflect on the repercussions of his actions and how his values have now changed. [The Applicant] stated that once released he has plans to live in close proximity to his daughter and be involved in her life and to become a productive member of society.’[43]

   [43] Exhibit 10, p 1.

10. The cross-examination then proceeded to a document prepared by the Applicant in response to a request from the Queensland Parole Authorities. In this document titled ‘Getting Back On Track’ the Applicant is asked to explain what he will be doing with himself and his life upon release looking forward one week, then one month and then six months. In this document he is asked to stipulate with whom he will be employed and to list any other relevant considerations and mitigation strategies.[44] With particular reference to this document the Applicant was asked to outline the steps he has taken to rectify his past mistakes culminating in his very serious fraudulent offending:

    ‘MS ALLEN: Well, I'm asking what steps you have taken to date to rectify every mistake you say that you've made?

    APPLICANT: Okay.  Well, we start off with the fraud.  Fraud is very simple and for me because it's just so – and I know in my heart that I'll absolutely not do again because I've had two and a half years to reflect.  On top of those two and a half years I've had a five year and two month bail period to go through, and the pressure that that's had on myself and my family.  And the effect that's had on all of the complainants is enough sadness for me to live with to never ever venture down that path again.  As I mentioned in my submissions there's no rehabilitation for fraudsters in gaol.  There's no courses that you can attend.  It's basically for me it was about being breach-free. Just – I am sure the officers would agree it's very difficult in a two and a half year period in gaol.  I'm just focusing on being a good person in the future.  It's a lot of time to think about that.  And also in addition to that I have a plan – I have employment opportunities when I am released to make sure I'm going the right path…’[45]

    [44] Exhibit 17.

    [45] Transcript, p 13, lines 29-43.

11. The Applicant’s parole conditions can also be said to speak to his recidivist risk. Those parole conditions are, of course, the result of the sentence imposed on him by Judge Loury QC. It will be recalled that the learned Judge imposed a head custodial term of eight years on each of the two counts on which the Applicant was conviction. Her Honour ordered that he be considered eligible for parole after serving a period of two and a half years in actual custody. As best as I understood the evidence, the Applicant was due for release on parole in the very near future on 30 March 2023.[46]

    [46] See Exhibit 6.

12. The terms of that parole appear in the material.[47] The terms are sequentially itemised from (a) to (x). The first two-thirds of the parole conditions contain the usual restrictive elements such as, for example:

    [47] Ibid.

    ·the Applicant is compelled to comply with the parole terms;

    ·he must not commit an offence during their currency;

    ·he must comply with all reporting requirements;

    ·he must reside at a place approved by the Parole Board and any changes to his residential arrangements or employment must be duly notified;

    ·he must provide a sample for substance testing if and when requested to do so;

    ·he must receive approval to travel interstate and/or overseas;

    ·he must notify his parole officer in the event of the making of an order for protection as a result of a family violence episode;

    ·if allowed to travel overseas he must, within 48 hours of a return, notify his parole officer; and

    ·he must not depart or be absent from his place of residence between the hours of 9PM and 5AM without approval. This condition applies for the first three months of his release.

13. The parole terms then contain the following elements which, to my mind, directly speak to the Applicant’s recidivist risk. The elements are quoting in full:

    ‘…

    (s)       You must not accept any work, paid or unpaid, without first obtaining the written approval of the corrective services officer;

    
    (t)        You must not engage in any activity, paid or unpaid, involving the control of money or assets of other people or organisations without the prior approval of an authorised corrective services officer;

    (u)       You must not in any way, directly or indirectly, contact or communicate or associate with Neil MCKENNY without the prior approval of an authorised corrective services officer;

    (v)       You must not in any way, directly or indirectly, contact or communicate or associate with Aaron EAST without the prior approval of an authorised corrective services officer;

    (w)      You must disclose details of access you have to the Internet, including by identifying the device(s) you have used for such access;

    (x)       You must do all things necessary (including providing passwords/codes) to allow examination of any electronic device in your possession or to which you have access by a member of the Queensland Police Service.’[48]

    [48] Exhibit 6, p 3, (s)-(x).

14. It is clear from the above elements that when they are read in a cumulative way, the Applicant:

    ·will very likely be restricted from again becoming employed or involved in employment or activity around gaming or other means by which people may be convinced to derive money from games of chance or happenstance;

    ·will be precluded from engaging ‘…in any activity, paid or unpaid, involving the control of money or assets of other people…’; this is a clear and obvious reference to his past history of inviting members of the public to expend money on a scheme(s) he was promoting;

    ·is precluded from, in any way, communicating or otherwise re-associating or otherwise recommencing any involvement with his co-offenders from the past;

    ·must report details of his use of the Internet;

    ·must surrender ‘any electronic device in [his possession or to which he has access] as and when requested to do so by a member of the Queensland Police Service’.

15. To my mind, the abovementioned general and specific terms of the Applicant’s parole order, do serve to monitor and control whatever risk the Applicant may represent in terms of returning to or recommitting the unlawful activity for which he received a head custodial term of eight years. Of course, the terms of this parole order do not, and cannot, guarantee personal vigilance over the Applicant and his activities on a 24 hours/seven days a week basis. That said, the terms nevertheless (1) do endeavour to control and restrict whatever risk the Applicant represents for re-committing his fraudulent conduct; and (2) it should be remembered that these terms will, as it were, hang over the head of the Applicant for the next five and a half years. That is not a small period of time.

16. The Applicant’s post-release employment: in his abovementioned affidavit sworn on 30 January 2023, the Applicant refers to his post-release scenario in terms of employment and deriving an income:

    ‘…a light bulb switched on in that last year and I found I used it to create a template for my own future success. I worked for a reputable renewable energy company managing their Gold Coast office and loved the job. The only reason I stopped working there was due to the ongoing appearances in court and felt as I drew nearer to my sentencing date, I couldn’t commit myself fully to the company. I plan on working in a similar setting upon release and have plenty of opportunities available to me, including a job offer from one of the people who provided one of the references, Mr Hemsworth. I know I can earn a good income and provide for myself and my daughter and have the necessary aptitude to do so.’[49]

    [49] Exhibit 11, p 6, [20].

17. During his evidence in cross-examination, the Applicant explained his history of employment in Australia with particular reference to his history of self-employment. It is not an unimpressive history:

    ‘MS ALLEN: And how did you support yourself when you first arrived in Australia?

    APPLICANT: Lots of different jobs initially.  Labouring jobs.  Doing a bit of plastering work.  I did some sales job.  It was like the original intention was to come here as a backpacker and – yes, I just moved around for the first couple of years doing those type of jobs.

    MS ALLEN: In your personal circumstances form you said from the period of 2008 to 2018 you were self-employed.  Can you expand a bit about the jobs you were undertaking during that 10-year period?

    APPLICANT: Yes.  Absolutely.  Like I mentioned earlier on so we were doing a lot of enrolment for courses – like education courses, CERT III/IV's, things with forklift tickets.  That sort of stuff.  I also had a lot to do with the solar industry.  They would be – probably be the primary ones that would spring to mind over that period of time.  I was doing some graphic design work for people as well.

    MS ALLEN: And these were all in businesses that you created?  That were yours?

    APPLICANT: Yes.  Either I was operating like on an ABN as an independent contractor.  I was operating in a business.

    MS ALLEN: So for most of your employment history, your work history you've been self-employed?

    APPLICANT: Yes.

    MS ALLEN: And from your evidence before having staff depend on you, you enjoy being self-employed?

    APPLICANT: I have done in the past, yes.

    MS ALLEN: And, ultimately, would you pursue self-employment again in the future?

    APPLICANT: It's not something I have goals in the future right now.

    MS ALLEN: Why not?

    APPLICANT: Because of my mistakes.  I am happy to take a back seat for quite some time – quite a few years in fact.  And just working in good company and make a good income that way.  It clearly didn't work out for me.  So, you know, I'm happy – I'm not happy I've burned bridges but I'm happy I got a smack in the face, and – you know – and I have to take a backward step in that regard.’[50]

    [50] Transcript, p 15, lines 20-45; p 16, lines 1-6.

1. In terms of prospective employment for the Applicant the Tribunal received evidence from a witness named Mr Chris Hemsworth. He has provided two statements which appear in the material.[51] Mr Hemsworth says (in his statement dated 18 January 2023)[52] that he has remained in contact with the Applicant over the last couple of years and that he has done so by way of telephone and electronic means. In his second statement (which is actually addressed to the Queensland Parole Board), he makes an offer of employment to the Applicant.

   [51] Exhibit 4 and Exhibit 17.

   [52] Exhibit 4.

2. Mr Hemsworth also gave oral evidence at the Hearing. He describes himself as a partner and chief executive officer of the oil and gas exploration company known as ‘[name of company redacted]’. It transpires that he has known the Applicant for well over ten years.[53] He says that he is aware of the Applicant’s very serious fraudulent offending but in cross-examination he said ‘But he’s – I believe that he’s changed.’ Mr Hemsworth has maintained contact with the Applicant since the latter’s incarceration. Prior to the Applicant’s incarceration, Mr Hemsworth told the Hearing that they communicated ‘Probably at least once or twice a week.’[54] Since the Applicant’s incarceration, Mr Hemsworth said they have communicated:

   ‘… Not as often.  We wrote letters, we’ve had quite a few video links, and maybe a call once a month or once every second week.  I mean, I understand he doesn’t get a lot of privileges in there, so I wasn’t expecting a lot of communication but it was definitely every week for a bit.’[55]

   [53] Transcript, p 72, lines 23-24.

   [54] Ibid, p 74, lines 36-37.

   [55] Ibid, lines 39-42.

3. There seemed to be a pattern of unreliability and vagueness in the evidence of Mr Hemsworth, particularly on the issue of just what kind of employment he has offered the Applicant and, if so, just what it is the Applicant would be doing in any such role. [name of company redacted] has offices in Dallas, Texas and Sydney, Australia. He told the Hearing that the intention was for the Applicant to work on a remote basis and to not necessarily be tied to either physical office of the company. Mr Hemsworth said that the Applicant would be working in the ‘client liaison department’ of the company. This is what he told the Hearing:

   ‘MS ALLEN: The applicant will be working in what you have described as the client liaison department?

   MR HEMSWORTH: Yes.

   MS ALLEN: In what role?

   MR HEMSWORTH: Just basically what I just explained before.  It would be just dealing with the owners, dealing with maintenance, with vendors, and it would just be a transition from customer relations to probably then obviously I would hope that he would find some kind of passion about the business and look to maybe excel and potentially look at some kind of engineering stuff where he could understand geology or leasing, or layman work.  There’s a lot to do in the business over here.’[56]

   [56] Transcript, p 75, lines 31-40.

4. Further vagueness in Mr Hemsworth’s evidence became apparent when he was asked about the terms and conditions of the Applicant’s proposed employment. Somewhat bizarrely, Mr Hemsworth told the Hearing that he had not yet put any offer to the Applicant but added that if the Applicant did well in the role ‘if there was a positive impact in the oil markets’, the Applicant could do very well in the role:

   ‘MS ALLEN: Do you know what salary that position would be paid?

   MR HEMSWORTH: Which one, the start salary?

   MS ALLEN: The position that you offered to the applicant?

   MR HEMSWORTH: Yes, right now I haven’t put an offer to Stiofan but usually it would be between $50,000 to $65,000 US, and then plus we would look at potentially doing company bonuses if things were going really well, so there would be some upside if there was a positive impact in the oil markets.’[57]

   [57] Ibid, p 75, lines 42-45; p 76, lines 1-2.

5. Following Mr Hemsworth’s cross-examination, I put certain questions to him. He said that he was aware of the Applicant’s fraudulent activity which had led to his incarceration. He was not aware that this unlawful activity had caused victims loses in excess of $AUD 2 million. I was particularly interested in precisely what sort of work the Applicant would be doing if employed by [name of company redacted]. It transpired that the Applicant would be liaising with owners or managers of oil wells to ensure servicing, repair requirements and scheduling were met for oil wells in Texas. There followed this exchange between me and Mr Hemsworth:

   ‘SENIOR MEMBER: What does Mr Ceitinn [know] about the maintenance and servicing of an oil well in Texas?

   MR HEMSWORTH: That would be something I would bring him up to speed with.  It would be just reporting what we do over here and he can report back to Australians during the day there when obviously the time difference.

   SENIOR MEMBER: You would agree then that as things currently stand, you are going to take him on as a client liaison officer to liaise with owners of oil wells or representatives of those owners about maintenance to their oil wells in circumstances where at the moment he knows nothing about how to maintain an oil well?

   MR HEMSWORTH: It is a job that can be very easily - I can communicate a lot of stuff with him so it would be an educational process, you’re right, but it will not take very long and like I said, I think for someone like Stiofan he is a very good guy that can obviously get along with customers.  He can relay good and bad news to them and I would trust him to keep clients happy.’[58]

   [58] Transcript, p 77, lines 45-46; p 78, lines 1-12.

6. There followed a question from me whether [name of company redacted] had a policy of not employing people with a criminal history as significant as that as the Applicant. Mr Hemsworth agreed that the company did have such a policy but that, apparently, an exception would be made for the Applicant:

   ‘SENIOR MEMBER:  Do you employer [sic] other people in [name of company redacted] with a conviction or convictions of the magnitude that Mr Ceitinn has?

   MR HEMSWORTH:  Not currently, no.

   SENIOR MEMBER:  And is it the company’s general policy not to employ people with a criminal history as significant as his?

   MR HEMSWORTH:  Generally, yes.  But, again, he knows - it was my opening statement, you know, I’ve known Stiofan for a while, and, you know, I do believe in second chances.  So if people want to hold that against somebody, that’s up to them.  I don’t think that, you know, he’s got any room to do any wrongdoing in my company, which would affect the lives of many of my clients.  And, you know, I just generally believe that I think that people, you know, if he can’t get employed by me, then who can he be employed with.  You know, I truly think that he would need some kind of a second chance (indistinct words).’[59]

   [59] Ibid, p 78, lines 41-47; p 79, lines 1-10.

7. I then sought to explore the terms and conditions of the Applicant’s proposed employment with Mr Hemsworth’s company. It transpires that he has not even discussed any starting salary range with the Applicant.[60] I then explored Mr Hemsworth’s evidence about the potential for the Applicant to derive certain bonuses if he did well in the role and which, in turn, would – according to Mr Hemsworth – positively impact the oil markets. In particular, I was interested to understand how one person based in Australia doing a client liaison job about oil well maintenance on behalf of one company could possibly have any influence on US or global oil markets:

   ‘SENIOR MEMBER:  Okay.  And you also spoke about, in your evidence a moment ago, that if he becomes involved in working for [name of company redacted], you’ll see how things go and those bonuses and other benefits that he could derive, is something that will be looked at if there are, what you called, positive impacts in the oil markets; what did you mean by that and how can a client liaison officer in one company possibly make a positive impact in either the US or global oil markets?

   MR HEMSWORTH:  It’s not a performance bonus.  It would be our company profit.  So if the company was doing very well, it would obviously, you know, share some kind of incentive with employees.  But it wouldn’t be anything that he would have to do to perform.  He’d obviously have to perform the duties of what’s required each day, and he would have to excel and obviously be able to keep his job.  And if he kept it for obviously till, you know, the end of the year, or whenever we do reporting, and if we do have a good year, then we would look at an incentive for employees.’[61]

   [60] Ibid, p 79, lines 22-25.

   [61] Transcript, p 79, lines 40-45; p 80, lines 1-8.

8. I was then interested to ascertain what sort of employee numbers [name of company redacted] had. This is what transpired between me and Mr Hemsworth:

   ‘SENIOR MEMBER:  And just in terms of employee numbers; how many people does [name of company redacted] employ in the United States, in Dallas?

   MR HEMSWORTH:  Yes, I’ve got three employees right now, full-time.  But we do deal with a lot of subcontractors.

   SENIOR MEMBER:  How many subcontractors do you deal with?

   MR HEMSWORTH:  Probably 20 or 30 right now.  It just depends on how active we are.

   SENIOR MEMBER:  Yes.  And there’s an office in Macquarie Street in Sydney; how many people are employed there?

   MR HEMSWORTH:  It’s just one of my partners working out of there.

   SENIOR MEMBER:  On his own?

   MR HEMSWORTH:  Yes.’[62]

   [62] Ibid, p 80, lines 10-28.

9. As mentioned earlier, there remains – at least to my mind – an unresolved residue of implausibility and lack of credibility in Mr Hemsworth’s evidence around the Applicant’s proposed employment with [name of company redacted]. During his own evidence in cross-examination, the Applicant gave evidence of how he had supported himself in Australia since his arrival here in the mid-2000s. The Applicant is not an idle person and not at all a lazy man. He believes in deriving an income by which he sustains himself and those around him:

   ‘MS ALLEN: And how did you support yourself when you first arrived in Australia?

   APPLICANT: Lots of different jobs initially.  Labouring jobs.  Doing a bit of plastering work.  I did some sales job.  It was like the original intention was to come here as a backpacker and – yes, I just moved around for the first couple of years doing those type of jobs.

   MS ALLEN: In your personal circumstances form you said from the period of 2008 to 2018 you were self-employed.  Can you expand a bit about the jobs you were undertaking during that 10-year period?

   APPLICANT: Yes.  Absolutely.  Like I mentioned earlier on so we were doing a lot of enrolment for courses – like education courses, CERT III/IV's, things with forklift tickets.  That sort of stuff.  I also had a lot to do with the solar industry.  They would be – probably be the primary ones that would spring to mind over that period of time.  I was doing some graphic design work for people as well.

   MS ALLEN: And these were all in businesses that you created?  That were yours?

   APPLICANT: Yes.  Either I was operating like on an ABN as an independent contractor.  I was operating in a business.

   MS ALLEN: So for most of your employment history, your work history you've been self-employed?

   APPLICANT: Yes.

   MS ALLEN: And from your evidence before having staff depend on you, you enjoy being self-employed?

   APPLICANT: I have done in the past, yes.

   MS ALLEN: And, ultimately, would you pursue self-employment again in the future?

   APPLICANT: It's not something I have goals in the future right now.

   MS ALLEN: Why not?

   APPLICANT: Because of my mistakes.  I am happy to take a back seat for quite some time – quite a few years in fact.  And just working in good company and make a good income that way.  It clearly didn't work out for me.  So, you know, I'm happy – I'm not happy I've burned bridges but I'm happy I got a smack in the face, and – you know – and I have to take a backward step in that regard.’[63]

   [63] Transcript, p 15, lines 20-46; p 16, lines 1-6.

   Assessment of recidivist risk

10. There can be no cavilling with the observations of Judge Loury QC in her assessment of the nature and extent of the scheme operated by the Applicant and his co-offenders. The offending was indeed calculated to extract significant sums of money from victims in circumstances where the promoters of the scheme(s) were well aware that the victims would incur substantial losses by becoming involved in using either/or the gaming software or commodity trading software.

11. This Applicant is clearly an intelligent person. I regard him as one of those people who, by one means or another, manages to make their way through life in a successful way. His intelligence renders him an enterprising individual. He was only employed by others in Australia from 2003 until 2008 – a period of barely five years. Thereafter, he worked for himself and managed to successfully provide for himself and his family. His intelligence is redolent from the intricate nature of the scheme(s) that led to his very serious offending.

12. Granted, the schemes were ultimately found to be unlawful. But there is no denying that a more than average level of intelligence was required to conceive of those schemes, to master and establish the necessary software around them, to promote them to potential customers (and, ultimately, victims) and to oversee the ongoing operation of those schemes to the point where they generated revenue in the millions of dollars. I repeat: the activity of the Applicant and his co-offenders was was unlawful. But it was nevertheless very well run with very impressive, albeit unlawful, outcomes.

13. The Applicant was rightly convicted and punished for his wrongdoing. But the inescapable reality is that the wrongdoing derives from an entrepreneurial spark within this Applicant that causes him to become fixed on a concept, to minutely understand it and to then implement a process whereby he can make money from that initial concept. The mistake he has made is that he allowed his conceptual thinking and resulting entrepreneurial motivation to cause him to ‘cross the threshold’ from lawful conduct into very serious unlawful conduct.

14. The Applicant’s demeanour – apparent in both his written and oral evidence – is that of a person who retains his entrepreneurial spark and inclination. In terms of recidivist risk, the key question is whether he will be able to restrain himself from again crossing the threshold from lawful to unlawful conduct if he again finds himself in the realm of taking a concept to a buying or customer market for the purposes of making money from such a venture. In other words, if he finds himself back in a self-employed scenario, what are the chances that he will again either sail close to the wind of illegality or otherwise cross the threshold from lawful to unlawful conduct?

15. The Respondent refers to a lack of clinical evidence about recidivist risk. But really, what can a clinician measure in the circumstances of this Applicant’s recidivist risk? I am not aware of any psychometric measurement around an entrepreneurial person’s pre-disposition of either sailing close to the wind or crossing a threshold into illegality in circumstances where that person again finds himself/herself in a self-employed scenario. It suffices to say that:

    ·Judge Loury QC thought the Applicant was unlikely to reoffend;

    ·there is nothing from the psychologist Ms Kirralee Taylor suggestive of the Applicant having a pre-disposition towards taking extreme risks or otherwise exhibiting personality traits indicative of a person inclined towards fraudulent behaviour;

    ·the abovementioned parole conditions – which will remain in place for the next five and a half years of this Applicant’s life – provide both general and specific protective elements against the risk of him again becoming involved in the promotion, implementation and operation of unlawful schemes;

    ·the Applicant – if successful in the instant proceeding – will return to the community on a visa. He is well aware that any further offending would return him to the dire visa circumstances in which he now finds himself;

    ·the Applicant is very likely to find employment. Even in the circumstances of the less than convincing evidence of Mr Hemsworth, I am satisfied the Applicant is both energetic and intelligent enough to find employment and to one day return to working for himself;

    ·the Applicant has experienced the full weight of the Australian criminal law for yielding to the temptation of crossing the threshold from lawful to unlawful conduct when he is working for himself;

    ·he has also experienced the significant weight of the Australian migration law which now places him at existential risk of removal from Australia such that he will never again be able to physically associate with his friends or family in this country.

16. In terms of actual recidivist risk, I am content to follow the Risk of Reoffending Prison Version (RoR-PV) score of ‘1’ which places the Applicant into the lowest category of recidivist risk for general reoffending. There is nothing in the material displacing this recidivist risk level since its first attribution to the Applicant in February 2021. The Respondent purports to take issue with this assessment because it relates to the risk of ‘general offending’[64]. With respect, I am hard-pressed to understand how fraudulent conduct punished by mainstream criminal courts in Queensland is not general offending. The Queensland Department of Corrective Services does, for example, contain a different risk assessment for sex offenders.[65] But I am not aware of any separate risk assessment for fraudulent offending.

    [64] Exhibit 19, p 11, [43.1].

    [65] Queensland Parole System Review – Issues Paper – August 2016, pp 18-19.

    Paragraph 8.1.2(2)(c)

17. The Direction also contains a reference to paragraph 8.1.2(2)(c). With reference this specific paragraph, this matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.

    Conclusion: Primary Consideration 1

18. With reference to the weight attributable to this Primary Consideration 1:

    (a)I have found that the nature and seriousness of the Applicant’s conduct to date has been, ‘very serious’;

    (b)I have found that that were this Applicant to re-commit his very serious fraudulent offending, there would be very serious and quantifiable material (i.e financial) loss to those victims together with (as was seen from a number of the victim impact statements) very serious harm to the psychological wellbeing of victims. It is not a stretch of the evidence to suggest (and find) that such psychological harm could, quite conceivably, rise to a catastrophic level.

    (c)in terms of recidivist risk, I will follow the abovementioned RoR-PV score of ‘1’ which places the Applicant into the lowest category of recidivist risk for general reoffending.

19. My analysis of the material leads me to a finding that this Primary Consideration 1 confers a certain, but not determinative, level of weight against revocation of the mandatory cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

20. The parties are in agreement that this Primary Consideration 2 does not apply to the instant determination.[66] I agree.

    [66] Exhibit 16, p 8, [8.2]; Exhibit 19, p 13, [45].

    PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

21. The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. There are four requisite considerations to be addressed in this Paragraph 8.3. I will address each in turn.

    Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members

1. Mr O’Dalaigh also gave oral evidence at the Hearing. He said that he was aware of the Applicant’s fraudulent offending but was not aware of the other offences for which he has been convicted in Australia. He told the Hearing that the families exchanged visits around three times a year at which time the Applicant would spend time with Child KY. Mr O’Dalaigh said that the last time he saw the Applicant was about two months prior to his incarceration and the last time Child KY spent time with the Applicant was at Christmas 2019. He last spoke with the Applicant via telephone but has not spoken to him since his incarceration.

2. Mr O’Dalaigh was specifically asked about (1) whether Child KY had been impacted by the Applicant’s physical absence; (2) he was also about whether it would be possible for Child KY to communicate with the Applicant by video call. This is what he said:

   ‘MS ALLEN: What about [Child KY], has he noticed - I mean, you caught up with Mr Ceitinn about three times a year and you haven't seen or spoken to him for the past two years or so.  Have you noticed any impact on [Child KY] since the applicant's incarceration?

   MR O’DALAIGH: Obviously with him being nonverbal and very low communication, it is very hard to say yes or no to that question. 

   …

   MS ALLEN: Would it be possible for [Child KY] to see the applicant by, for example, a video call?

   APPLICANT: It is very hard.  He won't focus long enough.  He very rarely even talks to my parents back home.’[135]

   [135] Transcript, p 55, lines 17-21; lines 31-33.

3. The biological mother of the three remaining relevant minor children, Ms Lauren Hyland, provided both written and oral evidence for the instant Hearing. In her written statement she describes the nature and extent of the Applicant’s relationship with her three children in these terms:

   ‘In addition to me and my husband the Hyland family home consist of three young children residing there who all miss Stephen’s presence. He has always brought fun and love to our home on his visits and the children have been counting down the months to his release so they can go for a jump on the trampoline with him, have a swim in the pool or take the dogs for a walk at the nearby park. These are just some of the regular activities he would encourage on his regular visits prior to incarceration. He would almost always bring [Child K] with him and the children miss the regularity of her visits also and hope for them to return upon his release.

   We really regard Stephen as family. Jason and I refer to him as brother and the kids call him Uncle. The impact on his absence has been particularly difficult for all of us. It seems that our bond as a non-blood-related family has only strengthened since he has been sent to jail.

   The potential effect of deportation would shatter us all and I feel that my children particularly would be impacted by missing out on somebody who has such a positive effect on their lives.’[136]

   [136] Exhibit 8.

4. In her oral evidence, Ms Hyland confirmed that she first met the Applicant 10-12 years ago. She told the Hearing that she was aware of the Applicant’s fraudulent offending and how it now imperilled his visa status to remain here. She was not aware of any other criminal offending of the Applicant in Australia. She told the Hearing that she had last spoken with the Applicant the day before she was giving her evidence to this Hearing. Since his incarceration, she said that she maintained contact with the Applicant on a weekly or fortnightly basis. She said that she had gone to visit him in prison on or about 10-15 occasions and that she last saw him at the Palen Creek prison about four months ago.

5. Prior to his incarceration, Ms Hyland said that she and her family would socialise with the Applicant ‘Definitely once a week.’[137] She confirmed and endorsed the nature of the Applicant’s role in the lives of her three infant children who she said were aged seven, five and three respectively. She confirmed that these three children are primarily cared for by herself and her husband who is also the biological father of the children. She further confirmed that the Applicant has not played a father-type role in the lives of the children and that the last time they had any contact with him was via facetime about a month ago. She further confirmed that she has not taken the children to visit the Applicant while he has been incarcerated. Finally, she confirmed that the children have not spent any time in person with the Applicant during the time of his incarceration.

   [137] Transcript, p 49, line 21.

   Application of the factors at 8.4(4) of the Direction to the five other relevant minor children

6. Sub-paragraph (a): with reference to the Children E and KY it can be – to a very moderate extent – found that there is and has been a certain nature and duration of the relationship between him and them. The difficulty for any ongoing connection between the Applicant and Child E will be the impediment that Child E is the daughter of one of the Applicant’s co-accused and that his parole orders prohibit him prevent him from spending time with Child E’s father. The further difficulty in relation to Child KY is that he resides in Adelaide with his parents and, at best, the evidence tells us that there has only been physical contact on two or three occasions per year between the Applicant and that child.

7. The position is more precarious in relation to the nature and duration of any relationship between the Applicant and the children of Mr and Ms Jason and Lauren Hyland. Those children are all aged 7 years and under. The Applicant has been incarcerated for a very significant portion of their lives. It is accordingly difficult to ascribe any meaningful weight to this sub-paragraph in relation to those three children. Overall, I am of the view that this sub-paragraph carries, at best, a moderate level of weight in favour of restoration of the Applicant’s visa status to remain here.

8. Sub-paragraph (b): the evidence around these five remaining relevant minor children is that the Applicant will be or wants to be an on-going presence in their lives. But this does not mean that he will necessarily play ‘a positive parental role’ in their futures and this is because they are primarily parented by other people. That said, there is, in a cumulative sense a significant period of ‘parenting-type’ time until each of these five children attain the age of 18 years. So there is ample time for the Applicant to play and develop some kind of positive role in the lives of these five children. At best, this sub-paragraph carries a moderate level of weight in favour of restoration of the Applicant’s visa status to remain here.

9. Sub-paragraph (c): the three youngest children are too young to express or indicate any of the negative impacts contemplated by this sub-paragraph. There was no indication of any such negative impacts reported by their mother, Ms Hyland. Likewise, there is no evidence before me indicating that either Child E or Child KY have suffered any of the negative impacts contemplated by this sub-paragraph. It should be put to one side and rendered neutral for present purposes.

10. Sub-paragraph (d): it is plain from the evidence that the Applicant has maintained at least some measure of non-in-person contact with these five children during the period of his incarceration and/or physical absence from their lives due to a geographical distance from them. It is not clear to me from the evidence whether any of these five children would be impacted by an ongoing requirement that they communicate with the Applicant on a non-in-person basis. This sub-paragraph should be put to one side and rendered neutral for present purposes.

11. Sub-paragraph (e): the evidence is plain that each of these five children are primarily parented by their biological parents. This sub-paragraph does not assist the Applicant.

12. Sub-paragraph (f): as best as I understood the material, none of the children’s views are known. With perhaps the exception of Children E and KY the remaining three children are too young to express such views. This sub-paragraph does not assist the Applicant.

13. Sub-paragraphs (g) and (h): there is nothing in the material point to any relevance that these two sub-paragraphs may have to the instant determination. Both are not relevant and should be put to one side.

    Findings about the other relevant minor children

14. I have reviewed the written and oral evidence in relation to these remaining minor children and have sought to apply the relevant sub-paragraphs at 8.4(4) of the Direction to that evidence. My conclusion is that the best interests of the remaining five minor children only moderately weigh in favour of the allocation of any level of weight to this Primary Consideration 4 in favour of restoring the Applicant’s visa status to remain in Australia.

    Conclusion: Primary Consideration 4

15. Overall, the cumulative best interests of each of the six relevant minor children, when analysed through the lens of an application of the relevant sub-paragraphs of 8.4(4) of the Direction to the evidence, lead me to a finding that this Primary Consideration 4 is of heavy weight in favour of revoking the delegate’s decision refusing to revoke the original mandatory cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

16. The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[138] The Direction further explains:

    ‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[139]

    [138] Paragraph 8.5(3) of the Direction.

    [139] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.

17. With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:

    (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

18. This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country, which is evidenced by repeated breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian government not to allow him to remain in Australia.

19. The Direction also states that a non-revocation of a mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[140]

    (a)acts of family violence; or

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

    (c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

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

    (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)worker exploitation.

    [140] Paragraph 8.5(2) of the Direction.

20. I have earlier found that the Applicant has committed offences that engage the operative effect of the abovementioned sub-paragraphs (c) by virtue of some of his fraud victims being elderly people;[141] and (d) by virtue of his conviction for ‘assault or obstruct police officer’.[142] This means the Australian community expects that the Australian government can and should cancel this Applicant’s visa.

    [141] Paragraph 8.5(2)(c) of the Direction.

    [142] Paragraph 8.5(2)(d) of the Direction.

21. The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:

    (a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;

    (b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[143]

    (c)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[144]

    (d)The community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;

    (e)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen;[145] and

    (f)If a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

    [143] Paragraph 5.2(4) of the Direction.

    [144] Ibid.

    [145] Paragraph 5.2(5) of the Direction.

22. In relation to sub-paragraph (a) of the immediately preceding paragraph [157], the term, ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Class BS Subclass 801 Partner visa at the time of the delegate’s decision under review. This Visa is classified as a ‘permanent visa permitting the holder to travel to and enter Australia for 5 years from date of grant.[146]’ As this Visa permitted the Applicant to remain in Australia on a permanent basis, the Visa held by the Applicant cannot be classified as a ‘limited stay visa’. Therefore, the application of this sub-paragraph is not applicable to the Applicant.

    [146] Migration Regulation 1994 (Cth), vol 2, sch 2, subclass 801.511.

23. In relation to sub-paragraph (b) of the abovementioned paragraph [157], the has Applicant resided in Australia from November 2003 when he was 21 years old a month before his 22^nd birthday. He is currently aged 41 years. He has a demonstrated work history in Australia. He has fathered one biological child in Australia – Child K, who is currently aged 14 years. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been, ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Act.

24. In relation to sub-paragraph (c) of the abovementioned paragraph [157], I repeat that the Applicant resided in Australia from the age of 21. He is currently 41 years of age. He has resided in Australia since November 2003. He has spent virtually half of his life in this country. This means that the Australian community has a higher than usual tolerance of criminal, or other serious conduct by the Applicant.

25. In relation to sub-paragraph (d) of the preceding paragraph [157] I am of the view that the length of time the Applicant has spent here facilitates a raising of the community’s level of tolerance for his offending. The moderating element against that finding is that, as I have found earlier, he has not spent his formative years in this country.   

26. In relation to sub-paragraph (e) of the abovementioned paragraph [157], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing a fraudulent offence(s) of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the Applicant’s conduct and the resulting harm from that conduct (thus far) has been of a sufficient magnitude such as to dispel any applicable countervailing considerations.

27. In relation to sub-paragraph (f) of the abovementioned paragraph [157], I have found that the Applicant’s offending is inherently of the type captured by, specifically, sub-paragraphs 8.5(2)(c) and (d). Given that finding, even strong countervailing considerations in his favour may not assist the Applicant. This is the case even in circumstances where, as I have found, he does not pose any measurable risk of causing physical harm to the Australian community. Therefore, my finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour even where he represents a low recidivist risk.

28. Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [157], I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of his very serious fraudulent offending, I am of the view (and I find) that the community expects the Government can and should cancel his visa.[147]

    Conclusion: Primary Consideration 5

    [147] Paragraph 5.2(3) of the Direction.

29. Primary Consideration 5 carries a certain, but not determinative, level of weight against revocation of the mandatory cancellation of the Applicant’s visa.

    OTHER CONSIDERATIONS

    Other Consideration (a): Legal consequence of the decision

30. I agree with the submission of the Respondent that the material before the Tribunal is not suggestive of any claim or finding that Australia’s non-refoulement obligations are enlivened in respect of this Applicant.[148] I am mindful of the legal consequences of the within Decision as enumerated in this Other Consideration (a). My ultimate determination of this matter does not impact upon or otherwise engage any of the legal consequences appearing at 9.1(1) of the Direction. This Other Consideration (a) is of neutral weight.

    [148] Exhibit 19, p 17, [67].

    Other Consideration (b): Extent of impediments if removed

31. Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country).

    The non-citizen’s age and health; Sub-paragraph 9.2(1)(a):

32. The Applicant is barely into his middle age and is currently aged 41 years. He will be 42 in December of this year. He does have a medical condition known as a ‘pulmonary embolism’. He has been living with this condition since approximately 2011-2012 and to whatever extent it recurs, the evidence demonstrates it is dealt with by way of anti-coagulant medication. He also refers in his PCF, to suffering from anxiety and depression. He has been working with a psychologist to deal with those conditions, which is managed by medication known as ‘Lexapro’.[149] There is no question that the Applicant has maintained an active and healthy lifestyle participating in a range of physical pursuits involving hiking, cycling and distance running. There can be surely no suggestion that the publicly available medical facilities in Ireland will not be able to facilitate treatment of the pulmonary embolism condition and whatever mental health issues the Applicant may experience if removed to that country. The Applicant’s age and state of health are not factors impeding his removal and resettlement in Ireland.

    [149] Exhibit 1, p 99.

    Whether there are any substantial language or cultural barriers: Sub-paragraph 9.2(1)(b)

1. The Applicant was born and lived in Ireland until the age of 18 years. He then resided in the United Kingdom for three years before coming to Australia as a 21 year old in November 2003. The evidence makes it plain that he has returned to Ireland on a number of occasions. In no way can it be said that Ireland is a country unfamiliar to him. He is well-familiar with its language and cultural norms. There are no language or cultural barriers impeding the Applicant’s return and resettlement in Ireland.

   Any social, medical and/or economic support available to that non-citizen in that country: Sub-paragraph 9.2(1)(c)

2. I have already found that the Applicant is an energetic and enterprising man. The type of work he would do in Australia could quite conceivably be done in Ireland. To the extent he may require governmental assistance, it is safe to find that Ireland most likely maintains a system of ‘safety net’ social security and support for its citizens comparable to what occurs in Australia. As a citizen of Ireland, the Applicant will have the same level of government safety net support as is available to other citizens of that country. I have already found that the Applicant’s medical conditions can be adequately treated by publicly available healthcare institutions in Ireland.

3. In term terms of social support, I have found that apart from Child K, the entirety of the Applicant’s remaining immediate and extended family are in Ireland. Both of his parents, his two sisters, his eight aunts and uncles, his 15 cousins and his fives nieces and nephews have all remained in Ireland. At the Hearing before me, the Applicant agreed that when he had previously returned to Ireland, he had resided at either the house of his mother or that of his sister.[150] To the extent that he may need urgent lodgings upon a return to Ireland, there is nothing to suggest he would not be able to reside with either his mother or sister.

   [150] Transcript p 20, lines 11-15.

4. In terms of any allocation of any weight to this Other Consideration (b), it should be noted that the Applicant readily accepts he would not face impediments upon a return to Ireland in relation to any of the three specific impediment types described at paragraph 9.2(1) of the Direction.[151] This Other Consideration (b) is to be put to one side and rendered neutral for present purposes.

   [151] Exhibit 13, p 11.

   Other Consideration (c): Impact on victims

5. There is nothing in the material to suggest that the outcome of the instant application will adversely impact any victim of the Applicant’s offending. I agree with the submission of the Respondent: this Other Consideration (c) must weigh neutrally[152] and is otherwise not relevant.

   [152] Exhibit 19, p 18, [75].

   Other Consideration (d): Impact Australian business interests

6. Paragraph 9.4(1) compels an assessment of the impact on Australian business interests as a consequence of the Applicant’s removal. It is not propounded by either party and I am of the view (and I find) that this Other Consideration (d) is not relevant.

   Findings: Other Considerations

7. The application of the Other Considerations in the present matter can be summarised as follows:

   (a)Legal consequences of the decision: is of neutral weight;

   (b)extent of impediments if removed: is of neutral weight;

   (c)impact on victims: not relevant; and

   (d)Impact on Australian business interests: not relevant.

   CONCLUSION

8. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.  

9. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

   ·Primary Consideration 1: carries a certain, but not determinative weight in favour of affirming the decision under review;

   ·Primary Consideration 2: is not relevant;

   ·Primary Consideration 3: is of a heavy level of weight in favour of setting aside the decision under review;

   ·Primary Consideration 4: is of a heavy level of weight in favour of setting aside the decision under review;

   ·Primary Consideration 5: carries a certain, but not determinative weight in favour of affirming the decision under review;

10. I have found that no weight is attributable to any of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3 and 4 respectively, are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1 and 5.

11. A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours setting aside of the Respondent’s decision under review made on 29 December 2022.

    DECISION

12. 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 29 December 2022 and substitutes it with a decision to revoke the cancellation of the Applicant’s visa.

I certify that the preceding 180 (one hundred and eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

....................................[SGD]...............................

Associate

Dated: 12 April 2023

Dates of hearing:	9 and 10 March 2023
Applicant:	Self-represented
Solicitor for the Respondent:	Ms Cody Allen (Associate)
Sparke Helmore Lawyers

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
1	Section 501 G-Documents (bookmarked G1- G45, paged 1 - 229)	R	Various	19 January 2023
2	Letter of Support for Applicant (No 1) - By Mr Sean O’ Dalaigh	A	16 January 2023	18 January 2023
3	Letter of Support for Applicant- By Mr Nathan Corbett	A	18January 2023	19 January 2023
4	Letter of Support for Applicant (No 1)- By Mr Chris Hemsworth	A	18 January 2023	19 January 2023
5	Letter of Support for Applicant- By Ms Haley East	A	17 January 2023	19 January 2023
6	Approval of Parole documents – From Applicant	A	16 January 2023	20 January 2023
7	Letter of Support for Applicant- By Ms Katherine Walton	A	22 January 2023	24 January 2023
8	Letter of Support for Applicant – By Ms Lauren Hyland	A	20 January 2023	24 January 2023
9	Letter of Support for Applicant- By Ms [Child K]	A	15 January 2023	24 January 2023
10	Letter of Support for Applicant-By Ms Kirralee Taylor	A	23 January 2023	24 January 2023
11	Signed Affidavit from Applicant	A	30 January 2023	30 January 2023
12	Letter of Support for Applicant- By Ms Janece Walton	A	25 January 2023	30 January 2023
13	Applicant’s Statement of Facts, Issues and Contentions (considering MD-90)	A	Undated	30 January 2023
14	From Applicant- Photograph bundle (No 1)	A	Various	31 January 2023
15	From Applicant- Photograph bundle (No 2)	A	Undated	7 February 2023
16	Applicant’s Statement of Facts, Issues and Contentions (revised as per MD-99)	A	Undated	15 February 2023
17	Submission in relation to Parole Order & Letter of Support for Applicant (No 2)- By Mr Chris Hemsworth	A	Undated	15 February 2023
18	Respondent’s Summons Bundle (bookmarked SB1-SB4, paged 1-199)	R	Various	24 February 2023
19	Respondent’s Statement of Facts, Issues and Contentions (Paged 1-19)	R	24 February 2023	24 February 2023
20	Letter of Support for Applicant (No 2) - By Mr Sean O’ Dalaigh	R	28 February 2023	28 February 2023
21	Applicant’s Opening Statement	A	Undated	2 March 2023
22	Applicant’s reply to Respondent’s Statement of Facts, Issues and Contentions	A	Undated	2 March 2023