Chand and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 618

Chand and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 618 (25 March 2022)
Division:GENERAL DIVISION
File Number: 2022/0268
Re:Avnesh Chand
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Theodore Tavoularis
Date:25 March 2022
Date of written reasons: 1 April 2022
Place:Brisbane

The decision under review is set aside and a decision in substitution is made revoking the original visa cancellation decision.
........................[SGD]...........................
Senior Member Theodore Tavoularis
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL
No: 2022/0268
General Division
Re: Avnesh CHAND
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              Senior Member Theodore Tavoularis
DATE:   25 March 2022
PLACE:                    Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside and substitutes the decision made by the delegate of the Respondent dated 30 December 2021 to not revoke the cancellation of the Applicant’s visa with a decision that this Tribunal exercises the discretion conferred by section 501CA(4) of the Migration Act 1958 (Cth).

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

..........................[SGD]...........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of a mandatory cancellation of a Class TY 444 Special (Temporary) 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. 90 – decision under review set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Tahuriorangi and Minister for Immigration and Border Protection (Migration) [2018] AATA 2158
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Secondary Materials
Ministerial Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Table of Contents
Decision
Catchwords
Legislation
Cases
Secondary Materials
REASONS FOR DECISION
Introduction and background
Legislative framework
Does the Applicant pass the Character Test?
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
The principles in paragraph 5.2
The Primary and Other Considerations

Primary Consideration 1 – protection of the australian community
The nature and seriousness of the non-citizen’s conduct to date
Paragraph 8.1.1(1)(a)(i)
Paragraph 8.1.1(1)(a)(ii)
Paragraph 8.1.1(1)(a)(iii)
Paragraph 8.1.1(1)(b)(i)
Paragraph 8.1.1(1)(b)(ii)
Paragraph 8.1.1(1)(b)(iii)
Paragraph 8.1.1(1)(b)(iv)
Paragraph 8.1.1(1)(c)
Paragraph 8.1.1(1)(d)
Paragraph 8.1.1(1)(e)
Paragraph 8.1.1(1)(f)
Paragraph 8.1.1(1)(g)
Conclusion about the nature and seriousness of the Applicant’s conduct

The risk to the Australian community should the Applicant commit further offences of engage in other serious conduct
The nature of the harm to individuals of the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
(i)    Information and evidence on the risk of the Applicant reoffending
(ii)      Evidence of rehabilitation of the Applicant by the time of this decision
(iii)     Conclusions about risk

Conclusion: Primary Consideration 1
Primary Consideration 2: family violence
Who are members of the Applicant’s family?
Did any of the Applicant’s conduct constitute family violence?
Assessment of the seriousness of the Applicant’s family violence
Conclusion: Primary Consideration 2
Primary Consideration 3: the best interests of minor children in australia
Identification of the relevant minor children
The parties’ respective contentions
The Applicant’s oral evidence
The evidence of Ms Devi
The evidence of the Applicant’s parents
Application of factors in paragraph 8.3(4) of the Direction to the relevant children
Findings about the relevant minor children
Conclusion: Primary Consideration 3
Primary Consideration 4: expectations of the australian community
Conclusion: Primary Consideration 4
Other Considerations
Other Consideration (a): International non-refoulement obligations
Other Consideration (b): Extent of impediments if removed
The Applicant’s written submissions
The Applicant’s oral evidence
The Respondent’s written submissions
Findings and allocation of weight to Other Consideration (b)

Other Consideration (c): Impact on victims
Findings and allocation of weight to Other Consideration (c)

Other Consideration (d): Links to the Australian Community
(1) Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature and duration of “other ties” – length of residence
3. Strength, nature and duration of “other ties” – family and other social links
(2) Impact on Australian business interests
Weight allocable to Other Consideration (d): links to the Australian community

Findings: Other Considerations
Conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
1 April 2022
introduction and background

Avnesh Chand (“the Applicant”) is a 36-year-old male, born in New Zealand. He will turn 37 on 25 June 2022. The Applicant’s family originally migrated from Fiji to New Zealand. The family then migrated from New Zealand to Australia in 2001, when the Applicant was sixteen years old.[1] Since the date of the Applicant’s arrival in Australia, that is, on a permanent basis on 6 November 2001, his movement records indicate that he has departed Australia on seven occasions.[2] On each of these seven occasions, his absences from Australia have been, respectively, and approximately, for five days, twelve days, seven days, two weeks, three weeks, three weeks, and two weeks. It suffices to say that since the time of his initial arrival (on a permanent basis with his family), the Applicant has spent the overwhelming majority of his time in Australia.
[1] A1, page 1, para [6]
[2] R1, pages 188-189.
The Applicant has compiled a not-insignificant offending history in Australia. The relevant Check Results Report (“the criminal history”) in the material before the Tribunal[3] refers to a history of offending that, in sentencing terms, spans the period from July 2004 to November 2020. The criminal history records the commission of some 30 separate offences that were dealt with at thirteen separate sentence episodes. His offending has seen the imposition of virtually the full ambit of sentencing options, including the following:
[3] G5, pages 43-46
·multiple bonds;
·multiple fines;
·imprisonment with immediate suspension of any custodial term;
·multiple convictions without further penalty;
·a community corrections order;
·an intensive correction order; and
·multiple terms of imprisonment with fixed non-parole periods.
3.
On 16 September 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) mandatorily cancelled the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa (“the visa”) pursuant to

s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and was serving a full-time custodial sentence. On 20 September 2020, the Applicant made written representations to the Respondent requesting revocation of the mandatory cancellation decision. On 30 December 2021, a delegate of the Respondent decided that the discretion subsisting in s 501CA(4) to revoke the cancellation of the Applicant’s visa was not enlivened.
On 13 January 2022, the Applicant applied to this Tribunal for review of the abovementioned decision by the delegate refusing to revoke the original mandatory cancellation of his visa. The hearing proceeded before me on 7 and 8 March 2022. The hearing received evidence from (1) the Applicant; (2) his mother; (3) a psychologist, Ms Julie Dombrowski; (4) the Applicant’s former wife; and (5) his father. The hearing also received evidence by way of written material which was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.[4] On 25 March 2022, the Tribunal set aside the decision under review and now provides its written reasons.
[4] See Transcript, page 2, lines 41-45 and page 3, lines 1-12
legislative framework
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by 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. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[5]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[6]
[5] [2018] FCAFC 151.
[6] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a, “substantial criminal record”. This phrase, in turn, is defined in s 501(7), which relevantly provides that a person will have a substantial criminal record if:
“…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…”
On 30 November 2020, at the Taree Local Court, the Applicant received multiple sentences of IMPRISONMENT (AGGREGATE): 12 MONTHS COMMENCING 06/08/2020 CONCLUDING 05/08/2021 NON PAROLE PERIOD WITH CONDITIONS: SEVEN MONTHS COMMENCING 06/08/2020 CONCLUDING 05/03/2021. This was a head sentence for a number of offences comprising, “possess or use a prohibited weapon without permit”, “possess prohibited drug”, “goods in personal custody suspected being stolen (not m/v)”, and “Larceny as bailee property value > $15000-T1.”[7] What matters for present purposes is whether or not the Applicant has received a singular term of imprisonment of twelve months or more, or in the alternative, whether he has received custodial terms, the cumulative total of which equate to or exceed twelve months. What does not matter for present purposes is the amount of time the Applicant has actually served.[8]
[7] G5, pages 43-45.
[8] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
There cannot be any dispute that the Applicant fails the character test and thus, the only live issue before the Tribunal is whether it should exercise its discretion pursuant to
[9] A1, page 4, paras [27]-[28]; R1, page 4, para [18].
s 501CA(4) of the Act to revoke the decision of the delegate refusing to set aside the mandatory cancellation of the visa. Specifically, this is the abovementioned refusal to revoke decision made on 30 December 2021. It seems common ground between the parties that the Applicant does not pass the character test.[9]
I am therefore satisfied (and I find) that the Applicant has a, “substantial criminal record” and, accordingly, he does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[10] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[11]
[10] Direction 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[11] Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to, “provide a framework within which decision-makers should approach their task” under s 501 or 501CA (as the case may be). Summarised where appropriate, the principles are:
(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.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or 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 have engaged in conduct in Australia or elsewhere that raises serious character concerns (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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” by which I must be guided in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[12]
[12] Direction, paragraph 8.
The Other Considerations which, where relevant, I must take into account, “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[13]
[13] Direction, paragraph 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)Information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)one or more Primary Considerations may outweigh other Primary Considerations.
I will now turn to addressing the abovementioned Primary and Other Considerations.
primary consideration 1 – protection of the australian community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non- citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. As referred to earlier, this Applicant has compiled a non-insignificant offending history in Australia. The offending history runs for just on four pages of single-spaced text.[14] It is not trite to suggest that this Applicant’s offending has consumed more than its fair share of Australia’s law enforcement resources and judicial sentencing apparatus.
[14] G5, pages 43-46.

I will now apply the relevant sub-paragraphs appearing in Paragraph 8.1.1(1) of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.
Paragraph 8.1.1(1)(a)(i)
This specific subparagraph looks for the commission of violent and/or sexual crimes. If an applicant has committed such offences, this sub-paragraph deems that they are to be viewed, “very seriously” by the Australian Government and the Australian community. On 16 August 2007, the Applicant was convicted of, “Assault officer in execution of duty”.[15] To my mind, while there is an element of violence to this offence, it more appropriately belongs in the discussion around subparagraph 8.1.1(1)(b)(ii).
[15] G5, page 46.
Aside from that offence, I am not able to glean any other conviction from the criminal history referring to a conviction for a violent and/or sexual crime committed by this Applicant. Accordingly, this subparagraph 8.1.1(1)(a)(i) is not relevant in the assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(a)(ii)
This subparagraph refers to crimes of a violent nature against women or children and, if such offences have been committed by an Applicant, those offences are deemed to be views, “very seriously” by the Australian Government and the Australian community. Notably, this conduct can be taken into account regardless of whether or not a sentence was imposed for it. This Applicant has one conviction for an act of violence against his mother. It comprises the conviction for, “Common assault” on 4 February 2013.[16] While this conduct involved, at a technical level, an act of violence against a female victim, for reasons I will explain later when discussing family violence, this isolated offending episode should not be construed as offending of such as magnitude as to compulsorily attract the adverse application of this sub-paragraph 8.1.1(1)(a)(ii).
[16] Ibid.
That said, it would be incorrect to ignore the auspices of this sub-paragraph for the purposes of assessing the nature and seriousness of the Applicant’s conduct in the present case. Accordingly, the Applicant’s singular offence of violence against his mother must, to an extent, attach a label of, “very serious” to the nature and extent of his offending.
Paragraph 8.1.1(1)(a)(iii)
This particular sub-paragraph looks for acts of family violence in an Applicant’s offending history and, if there has been such offending, provides that it is viewed, “very seriously” by the Australian Government and the Australian community. The material contains a police narrative of the circumstances involving the Applicant’s violent offending against his mother on 19 January 2013. The relevant police summary says the following:[17]
“The accused in this matter is Avnesh CHAND and the victim is his mother, [redacted in original] who is currently suffering from breast cancer. The accused is currently residing at [address redacted in original] with his parents. The accused's parents assist the accused with looking after his three small children. For the last three days the accused has been absent from [name of street redacted in original] Drive. He did not tell his parents where he was going and he left his children in their care. About 3:00pm on Saturday the 19th January 2013 the accused arrived home. The victim asked him where he had been and the accused said "Who are you to ask me where i've been". The victim and the accused became involved in an argument over who was financially responsible for the children and the accused became loud and aggressive towards the victim. The victim pointed at the accused and said "don't talk to me like that" and the accused grabbed the victim's right wrist and squeezed it really hard. This caused the victim to feel immediate pain. The victim asked the accused to let go of her arm and she pushed the accused to the chest to get him to let go. The accused let go of the victim's arm and he walked outside and rang the police. Police arrived a short time later and spoke to the victim where she showed police bruising to her right wrist. Police photographed her wrist. At no time did the victim give the accused permission to assault her. Police entered the premises where they cautioned and arrested the accused who was conveyed to Blacktown Police Station and introduced to the custody manager. The victim attended Mt Druitt Police Station where she made a statement to Police about the matter. The victim's husband also attended Mt Druitt Police Station to provide a statement. The matter is now before the court. Aggravating factors: 1) The offence involved the actual use of violence. 2) The offence involved occurred in the home of the victim.”
[Error in original]
[17] R2, S1, page 75.
This offending involved the commission of an act of violence by the Applicant against his mother. As outlined in the commentary around sub-paragraph 8.1.1(1)(a)(ii), the Applicant was convicted for this conduct, proffered as, “Common assault”, on 4 February 2013, at the Mount Druitt Local Court. As such, it is conduct that attracts the operative effect of this sub-paragraph 8.1.1(1)(a)(iii) in favour of a finding that the nature of the Applicant’s conduct can be regarded as being, “very serious”.
Paragraph 8.1.1(1)(b)(i)
There is no evidence in either the oral or written material to the effect that this Applicant has committed any offences in the realm of causing a person to enter into or being a party to a forced marriage. I am not able to find any formally recorded conviction for such offending nor is there any reference to it in any police narrative (or equivalent) that did or did not result in any conviction. This particular sub-paragraph is therefore not relevant to the assessment of the nature and seriousness of the Applicant’s unlawful conduct.
Paragraph 8.1.1(1)(b)(ii)
This sub-paragraph looks for the commission of any offence against what is described as, “vulnerable members of the community such as the elderly and the disabled, or government representatives or officials…in the performance of their duties”. The Applicant has two convictions for: (1) offending against an elderly member of the community and (2) offending against a government representative or official in the course of their duties. I will detail each instance of such offending.
First, the Applicant offended against his mother on 19 January 2013, as recorded in the abovementioned quoted portion of the relevant police narrative. There can be no question that the Applicant’s mother (with due respect to her) qualifies as an, “elderly” member of the community. Also, there can be no question that he committed a crime against her – namely, his conviction for, “Common assault”, recorded on 4 February 2013.
Second, the Applicant has a conviction (imposed on 16 August 2007 at the Paramatta Local Court) for “Assault officer in execution of duty”. On that day, he was also convicted of, “Stalk/intimidate intend fear of physical /mental harm”. These two convictions arise from conduct summarised in the material thus:[18]
“About 1:45am on Sunday 24th June 2007 Police attended the Hotel Parramatta, Darcy St, Parramatta in relation to another incident. Whilst dealing with people across the road from the Hotel Parramatta, Police heard ......... yelling out, "What the fuck am I out for? You tell me what the fuck I'm out for! " ......... was being pushed in an easterly direction on the northern footpath of Darcy Street by some friends who were trying to get him away from the Hotel. One of these 'friends' included ......... brother, Avnesh CHAND. .......... continued yelling abuse in a loud and intimidating manner. At the time there were about 10-15 patrons from the Hotel on the footpath outside and in hearing of this swearing. Police approached ......... who was being held by his brother Avnesh CHAND. Acting Inspector ......... ........................... ......... ........................... ......... Police Station. Your behaviour is intimidating to other persons here. I am giving you a move on direction. You need to move away from this premises. Go home." .......... said, "Do you understand?" No answer was given . . ......... said, "My name is ......... from Parramatta Police. Your behaviour is intimidating to other persons and you must leave now. Failure to comply is an offence.". Avnesh CHAND said, "Ok, we're going, we're going.". Avnesh CHAND and two unknown females were attempting to push ........ . ......... on Darcy Street. As they walked near a shop window, ........ . rammed his full body weight against the window. No damage was occasioned. .......... repeated, "You have been told to go, now go!". Avnesh CHAND turned abruptly towards ......... , stepped in towards her so that less than 1/2 metre gap remained, leaned over her and yelled in a loud and intimidating voice, "We're going!" . His actions caused ......... to reel backwards as she feared an assault from ......... who towered over her. ......... took hold of Avnesh CHAND and said, "You're under arrest for Intimidate Police." Avnesh CHAND took hold of ......... wrists causing immediate discomfort. He remained grasping her hands until he was wrestled to the ground by 3-5 Police and handcuffed. During this wrestle, ......... grabbed hold of Avnesh CHAND in an attempt to pull him away from Police grasp. He was also wrestled to the ground by three Police. During his arrest, ......... remained aggressive to Police, constantly resisting Police in his detention. Avnesh CHAND appeared to calm down a couple of minutes later. When spoken to by ......... , he said, ''I'm sorry. I know, I'm sorry." .......... was wrestled into the rear of a Police caged truck. Avnesh CHAND complied and entered a second caged truck. Both CHAND brothers were conveyed to Blacktown Police Station where they were introduced to the Custody Manager and afforded their rights whilst in custody. Both CHAND brothers were not interviewed due to their levels of intoxication. They are now charged with the matters before the Court. BAIL: ......... has prior history for failing to appear at Court and had subsequent warrants issued. He was defiant with Police from the time of Police intervention. Police believe it is likely he will not attend Court for this matter if given bail. If bail is given, consideration should be given to exclude ......... from attending the Hotel Parramatta and reporting conditions be imposed to monitor his behaviour whilst at liberty on bail and his subsequent attendance at Court.”
[Errors and redactions in original; my emphasis]
[18] Ibid, page 84.
There can be no cavilling with the finding that the auspices of this sub-paragraph 8.1.1(1)(b)(ii) are duly engaged because the Applicant’s conduct did result in his conviction for crimes committed against, “government representatives or officials” (police officers), “in the performance of their duties”. This sub-paragraph 8.1.1(1)(b)(ii) can therefore be applied towards a finding that the nature of the Applicant’s conduct has been of a serious nature.
Paragraph 8.1.1(1)(b)(iii)
This sub-paragraph refers to serious conduct involving, “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”. The Respondent has not propounded this component of the Direction in either its written or oral submissions. The transcript demonstrates that neither party said anything about this particular sub-paragraph at the hearing. I therefore find that this sub-paragraph of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(iv)
This sub-paragraph refers to (and renders, “serious”) any crime committed by a non-citizen while in immigration detention. None of the offences appearing in the Applicant’s criminal history are referable to conduct that occurred during his time in immigration detention, during an escape from immigration detention, or any of the other componentry appearing in the language of this sub-paragraph. It was not propounded by the Respondent in either its written or oral submissions. This sub-paragraph is thus not relevant to any assessment of the nature and seriousness of the Applicant’s unlawful conduct in Australia.
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;[19] (2) acts of family violence;[20] 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.[21]
[19]    Paragraph 8.1.1(1)(a)(ii).
[20]    Paragraph 8.1.1(1)(a)(iii).
[21]    Paragraph 8.1.1(1)(b)(i).
I am therefore precluded from taking into account the specific sentence imposed on the Applicant on 16 August 2007 (“Assault officer in execution of duty”) or indeed, the further conviction of, “Stalk/intimidate fear of physical/mental harm” that he received on the same day. To the best of my understanding of the material, he has not been sentenced for conduct involving him causing a person to become involved in a forced marriage. That, of course, is not the end of the Applicant’s sentencing history. He has received sentences for non-precluded offending which do attract the operative effect of this particular sub-paragraph 8.1.1(1)(c).
The Applicant has received a multiplicity of sentences ranging from multiple bonds, multiple fines, immediately suspended terms of imprisonment, the imposition of convictions without penalty, community correction orders, intensive correction orders and, ultimately, terms of imprisonment (where he spent time in actual custody) with a fixed non-parole period. I will cite some examples of each:[22]
[22] G5, pages 43-46.
·On 23 May 2013, he received five separate fines of $250 each for offending described as, “Furnish false information/statement to licensee”;
·Multiple bonds have been imposed on him such as, for example:
o28 July 2004: driving while his driver’s licence was suspended;
o21 April 2008: driving while his driver’s licence was suspended;
o22 August 2013: twelve months’ imprisonment suspended on the Applicant entering a bond for committing the offence of ,“Steal property in dwelling house”. It should also be noted that the Applicant received the benefit of an immediate suspension of any requirement compelling him to serve actual time in custody via the imposition of the bond;
oOn 19 March 2019 and 30 November 2020, for separate driving offences, the Applicant was convicted pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW);
oOn 25 November 2019, the Applicant was convicted of, “Possess prohibited drug” and was sentenced by way of the imposition of a community correction order with an operative effect of two years;
oOn 25 November 2019, the Applicant was convicted of “Take part supply prohib drug > indictable & < comm qty-T1” and was sentenced by way of the imposition of an intensive correction order with an operative effect of thirteen months; and
oOn 30 November 2020, the Applicant received, for at least four separate offences, respective convictions involving the imposition of a custodial term described as, “Imprisonment (Aggregate): 12 months commencing 06/08/2020 concluding 05/08/2021 non parole period with conditions: 7 months commencing 06/08/2020 concluding 05/03/2021.”.
The imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. It logically follows that the imposition of a custodial term must be viewed as a reflection of the objective seriousness of the offending sought to be punished.[23] The important point to be taken from the non-precluded sentences imposed on the Applicant is that he has received virtually the full range of sentencing options available to a judicial sentencing officer. It is not either a misconstruction of the sentencing history, nor a misunderstanding of the circumstances of the Applicant’s offending to suggest (and find) that the range of sentencing alternatives imposed on the Applicant is now indicative of both the nature and extent of his unlawful conduct.
[23] See PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at para [20].
It is therefore safe to find that the sentences imposed by the courts for the crimes of this Applicant across the over-sixteen-year history of that offending are militative of a finding that his unlawful conduct in Australia has been of a serious nature.
Paragraph 8.1.1(1)(d)
This sub-paragraph addresses two specific aspects of a person’s offending: its frequency and/or whether there is any trend of increasing seriousness. First, one need travel little distance to safely arrive at a conclusion that his offending has been of a frequent nature. He has committed some 30 offences that have been dealt with at thirteen separate sentencing episodes. Across the over-sixteen-year period of this Applicant’s offending, he has committed something in the order of two offences per annum that had to be dealt with by judicial sentencing officers. I accordingly find that there is an obvious and undeniable frequency to the Applicant’s offending.
The second enquiry involves an assessment of whether the criminal history demonstrates a trend of increasing seriousness. In relative terms, this Applicant’s offending history follows a familiar pattern involving him being convicted and sentenced for less serious offending during the history’s early phases but then rising to a crescendo of greater seriousness across its evolution. During the oral submissions put before the Tribunal by the parties’ respective representatives, it was virtually common ground that his offending – for whatever reason – appeared to evolve through three separate temporal phases. A review of each of those three phases demonstrates an inherent trend of increasing seriousness in that offending:
·First phase:[24] July 2004 – April 2008: the offending in this phase comprised (1) driving offences and (2) a refusal to properly engage with lawful authority. The sentences comprised (1) bonds (x2); (2) fines (x4) and (3) disqualification from driving (x3);
·Second phase: February 2013 – September 2019: the offending in this phase graduated in terms of seriousness and became offending in the realm of (1) common assault; (2) furnish false information (x5); (3) steal property in dwelling-house > $15,000; (4) failure to appear in accordance with bail undertaking; (5) goods in personal custody suspected of being stolen; and (6) larceny. For this offending, he was punished by way of (1) fines (x8); (2) a bond with an operative effect of twelve months and (3) imprisonment for twelve months, immediately suspended upon him entering a bond with an operative effect of twelve months.
·Third phase: March 2019 – November 2020: this phase of the offending saw the Applicant commit offences in the realms of (1) driving offences; (2) possession of weapons-type offences; (3) offences in relation to property such as (i) being in possession of property suspected of being stolen and (ii) larceny; (4) drug offences ranging from (i) possession of prohibited drug (x3) and (ii) “Take part supply prohib drug > indictable & < comm qty-T1”. Sentences for this offending ranged from (1) fines; (2) to the recording of a conviction with no further penalty; (3) to the imposition of a community correction order; (4) to the imposition of an intensive correction order and, ultimately, (5) to the imposition of a twelve-month custodial term with a non-parole period of seven months.
[24] Each of the phases referred to in this paragraph is defined by relevant sentencing episodes.
I am satisfied that this Applicant’s offending has been of a frequent nature. I am further satisfied that upon review of the nature of the offences and the sentences imposed during each of the three phases of the offending, a finding of a trend of increasing seriousness in the offending can be readily made. I therefore conclude that both elements of this particular sub-paragraph 8.1.1(1)(d) are strongly militative of a finding that the totality of the Applicant’s offending in this country has been of a serious nature.
Paragraph 8.1.1(1)(e)

This sub-paragraph compels an enquiry into the cumulative effect of the Applicant’s repeated offending. I am of the view that the Applicant’s sequence of offences is demonstrative of a number of cumulative effects. First, there seems little to cavil with the proposition that his offending is demonstrative of a failure to comply with, or otherwise meet the requirements of lawful authority. This is evidenced by his offending against police officers in the course of their duty (sentenced on 16 August 2007); his failure to meet the requirements of a duly issued undertaking as to bail (sentenced on 22 August 2013) and his breach of a community correction order (sentenced on 30 November 2020).
Second, the progressive evolution of the sentencing regime imposed upon him is demonstrative of an Applicant who has failed to experience any deterrent or dissuading effect of the progressively more severe sentences that have been imposed on him. At the risk of repeating myself, he has received virtually the full ambit of sentences. He took nothing from the non-custodial nature of the sentences imposed during the abovementioned first phase of his offending. He took nothing from the wholly suspended custodial term of twelve months imposed upon him during the second phase of his offending. He then proceeded in the third phase of his offending to commit his most serious offences and to receive, inter-alia, offences involving a not-insignificant time in actual custody.
Third, the Applicant’s past difficulties with illicit substances have, without question, so severely distorted his moral compass such as to cause him to disrespect the personal rights of others and the rights of others in the property they own and have worked hard to acquire. His interference with the personal rights of others has concerningly drawn his mother and police officers into its realm. His violent conduct has not been isolated towards anonymous individuals.
Fourth, the Applicant does not seem to have formed any definitive understanding of the necessary level of responsibility and lawful compliance in the ownership and operation of a motor vehicle on Australian carriageways. He has a multiplicity of convictions for both operating a motor vehicle while not lawfully licenced to do so, as well as operating a motor vehicle while under the adverse influence of an illicit drug. It is neither safe nor appropriate to categorise the Applicant’s driving offences as belonging to some minor corner of his history. There is a level of prevalence of driving offences in the Applicant’s history suggestive of attendant recklessness and indifference to the laws and regulations governing the operation of a motor vehicle. In a previous decision, I have found that laws that protect road users, “go to the essential safety of the community”.[25] I make a similar finding on the facts now before me.
[25] Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at para [45], citing Apire and Minister for Immigration and Border Protection [2014] AATA 193 at para [16].
Fifth, the Applicant’s offending must, on any reasonable analysis, be found to have consumed more than its fair share of the community’s law enforcement and judicial sentencing apparatus. His involvement in the unlawful trade of illicit drugs has directly challenged the safety and well-being of the Australian community. Difficulties visited by illicit drugs upon the community very often result in devastating impacts, not just on individual users, but upon families/connections of those users who are at the front line of dealing with the adverse effect of such substances on their loved ones. In this way, it is not a stretch of the evidence to further suggest, and find, that this Applicant’s offending has likewise consumed its inordinate fair share of the community’s public health resources.
The above-described cumulative effects of the Applicant’s repeated offending must militate in favour of a finding that the totality of his offending in this country has been of a serious nature.
Paragraph 8.1.1(1)(f)
This sub-paragraph looks at whether a non-citizen has provided false or misleading information to the Minister’s department, including by not disclosing criminal offending. Earlier in these Reasons (see paragraph 1], I pointed out that the Applicant has made seven return trips from Australia after the time on which he came to Australia with his family to reside here on a permanent basis. The material contains reference to three incoming passenger cards referable to his respective returns to Australia on 8 March 2009,[26] 21 October 2009[27] and 1 April 2018[28], respectively.
[26]    G49, page 199.
[27]    G50, page 200.
[28]    G51, page 201.
I will deal with the first two incoming passenger cards that were filled out in 2009. They each contain the same question: “If you are NOT an Australian citizen, do you have any criminal convictions?”. The Applicant put an “x” next to the “No” answer in each of these two cards. Yet, by 2009, the Applicant had convictions in Australia for:
·driving while his driver licence was suspended (x2);
·driving while disqualified (x2);
·assault officer in execution of duty; and
·stalk/intimidate intend fear of physical/mental harm.
I will now deal with the third and final incoming passenger card appearing in the material. This passenger card contained the same question (identically worded) about previous criminal convictions as the first two cards. Once again, the Applicant crossed the “No” answer. Yet, by the date of completion of this card (1 April 2018), the Applicant had received convictions for a cumulative total of sixteen offences that had been dealt with at nine separate sentencing episodes.
In his original statement made on 10 February 2022, the Applicant explained his incorrect completion of the first two incoming passenger cards, thus:
“Incoming passenger card
101. I know that I failed to declare my criminal convictions in my incoming passenger cards of March and April 2009 and 2008.
102. I honestly thought at the time that convicted meant “being sent to gaol”. I wasn’t purposely trying to be dishonest.
103. I understand now that “convict” means to be found guilty of something in a court, and I won’t make this mistake if I am ever asked to disclose my convictions again.”[29]
[29] A2, page 10.
While he did not give oral evidence on this specific issue at the hearing (either in evidence-in-chief, or in cross-examination) I have difficulty in accepting that this Applicant did not understand the meaning of the word, “convicted” and that he incorrectly completed the first two incoming passenger cards under the mistaken belief that, although he had been dealt with for a multiplicity of offences by the time he completed these first two cards, he somehow thought that, “convicted” necessarily involved physical incarceration.
This excuse has less traction with reference to the third incoming passenger card. He completed this third card on 1 April 2018. By that time, the Applicant had been sentenced to a term of, “imprisonment” that was wholly suspended by his entry into a bond with an operative period of twelve months (imposed on 22 August 2013). Therefore, the concept of, “imprisonment” was well known to the Applicant by the time he incorrectly completed this card in April 2018. I have grave difficulty in now accepting that simply because he was not physically placed into a custodial facility, that this suspended term of imprisonment did not, in his mind, register as a conviction.
Accordingly, the Applicant’s purported explanation for the incorrect completion for each of the three cards must be rejected. This particular sub-paragraph 8.1.1(1)(f) militates in favour of a finding that the totality of the Applicant’s offending history in Australia has been of a serious nature.
Paragraph 8.1.1(1)(g)
The enquiry compelled by this sub-paragraph involves the issue of whether or not an Applicant has re-offended since being formally warned about the consequences of further offending in terms of his visa status to remain here. Within the totality of the evidence, I could not find any reference to the Applicant, “being formally warned or since otherwise being made aware, in writing about the consequences of further offending in terms of …” his visa status to remain here.
During cross-examination, the Applicant was taken to a possibility that he had received some kind of warning because of his brother’s apparent prior removal from Australia (due to that brother’s offending) to New Zealand. This is what transpired during the cross-examination on this issue:
“Ms Strugnell: Okay. When your visa was first cancelled, you made some reorientations [sic] to the minister to request that that cancellation be revoked, and among those representations you said that - you were asked if you had previously been given a warning from the Department of the Minister, and you said you hadn’t been given any previous warning, and if you’d known then you wouldn’t have considered the possibility of reoffending? ---
Applicant: That’s correct.
Ms Strugnell: I just want to - yes. I just wanted to explore that with you, too, because your brother was removed to New Zealand, wasn’t he?
Applicant: That’s correct.
Ms Strugnell: So is it correct to say that you were aware that a possibility of offending was that your visa might be cancelled?
Applicant: To be honest, no, I wasn’t that aware, because he - from - since he was 18, he has been in jail every - mostly - mostly all the years, and because of - I thought the extension of history he has got and what he was doing and everything, I thought that was the reason they removed him. I wasn’t aware of - that it’s not just being in jail for six months or a year and everything that you can be - it’s a serious (indistinct) like, it’s a serious offence, you know? And comparing to him, and I never compared to myself, so I think that’s where the misunderstanding was for me.”[30]
[30] Transcript, page 50, lines 26-44.
It is, with respect, an unreasonable stretch of the evidence to purport to conflate the Australian visa history of the Applicant’s brother with the operative effect of sub-paragraph 8.1.1(1)(g) on the specific issue of the Applicant’s visa status to remain here. We do not know the precise circumstances giving rise to the brother’s asserted removal to New Zealand. We do not know the extent to which the Applicant was involved in the circumstances of his brother’s removal. There is no material before the Tribunal detailing his brother’s removal. In the Tribunal’s view, it is not safe to proceed on the basis that this Applicant can now be deemed to have received some kind of, “warning” about the impact of his (the Applicant’s) offending on his Australian visa status based upon what his brother may have been told, or whatever may have been determined in the course of that brother’s removal.
Accordingly, this sub-paragraph 8.1.1(1)(g) is not relevant to any assessment of the nature and seriousness of the Applicant’s unlawful conduct in Australia.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have sought to apply each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable sub-paragraphs to which I have referred, I am of the view that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as, “serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. I am satisfied that, were this Applicant to re-commit any of the offences in any of the offending categories apparent from his criminal history thus far, individual victims and/or the Australian community at large could quite conceivably suffer physical, psychological, and other material damage (i.e., financial).
Were he to again assume control of a motor vehicle on an Australian carriageway while: (1) not licenced to do so; (2) being disqualified from doing so; or (3) while under the adverse influence of an illicit drug in his blood, then other users of Australian carriageways would be exposed to an identifiable risk. Were he to again interfere with the inalienable rights of other people in the community to acquire, use and otherwise enjoy the property they own, victims of such offending would suffer demonstrable material loss and damage. Were he to again commit offences involving the unlawful possession of prohibited weapons, the scope for physical harm to other people in the community is self-evident.
Were he again to become involved in the unlawful supply of prohibited drugs, together with the unlawful possession of such drugs, the nature of the harm to individual consumers/addicts, plus the families around those people who deal with the fall-out from those addictions, plus the sheer load that community difficulties with illicit drugs force upon the community’s public health apparatus is, once again, self-evident. As I have noted in an earlier decision:
“The often catastrophic health consequences for gullible, naïve and addicted consumers of these substances frequently involves very serious illnesses and related maladies. There is nothing passive or non-violent about the frequently disastrous effects of these substances, not just on individuals who consume them but on families forced to deal with the unpredictable conduct of a family member affected by them.”[31]
[31] Tahuriorangi and Minister for Immigration and Border Protection (Migration) [2018] AATA 2158 at para [46].
Were he to again fail to follow the lawful dictates and requirements of police officers and/or a legally made and issued document – such as a community corrections order, or an order for bail – compelling him to do or refrain from doing something, then such offending would further consume a disproportionate level of the community’s police and judicial sentencing resources aimed at curbing and otherwise regulating such unlawful conduct.
I am satisfied (and I find) that were this Applicant to re-offend, the nature of the harm to individuals or the Australian community would be serious and would involve physical, psychological, and material harm to individual victims and/or the community at large, including, quite conceivably, harm to a catastrophic level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
(i) Information and evidence on the risk of the Applicant reoffending
In his Personal Circumstances Form (“PCF”), the Applicant provided the following explanation as to his belief about the recidivist risk he represents in Australia:
“Would like to stress from the bottom of my heart had I known the seriousness and all the implacations of my offending as I now realise I would not have gone down this path and will do everything I can to not only show remorse and regret but to ensure my behaviour does not result in reoffending in any way, shape or form, I now realise myself and my childrens future are of utmost importance especially being able to hopefully reside in Australia.”[32]
[Errors in original]
[32] G15, page 120.
In his representations seeking to set aside the delegate’s decision made pursuant to s 5013A of the Act, the Applicant said:
“I know that I will not reoffend or commit any other offences in Australia. Before my sentencing hearing, I was interviewed by a parole officer who did a pre-sentence report about me that was submitted to the court…The parole office said that I had very strong chances of successfully rehabilitating and that I would be very unlikely to reoffend again.”[33]
[33] G63, page 227.
In his written statement of 10 February 2022, the Applicant said this:
“138. To finish, I would like to say that I pose no risk whatsoever to the Australian community. I have learned my lesson and I intend to stay as far away from drugs and trouble as I can, and I would never ever hurt my mother or anyone in my family again.
139. I just want to back [sic] with my kids and I want to be there for my parents. I know it’s not fair that in their old age, they are taking care of my children because I’m not around.
140. If I am allowed back into the Australian community, I undertake to follow
Australian laws to the letter. I know now what is at stake here. My family
[34] A2, pages 13-14, paras [138]-[140].
means everything to me and everything I do from now on will revolve around them and what is best for them.”[34]
In his Statement of Facts, Issues and Contentions (“SFIC”), the Applicant’s recidivist risk is described as, “low”:
49. It is submitted that the Tribunal should be satisfied that the likelihood the Applicant engaging in further criminal conduct or other serious conduct is now low. This is because:
a. The Applicant has expressed remorse, regret and shame over his criminal conduct and acknowledged that his actions were unacceptable, and that he should have made better choices;
b. The conviction that led to the Applicant’s visa cancellation was his first time in custody;
c. The Applicant successfully completed five remand addiction sessions while at Mid North Coast Correctional Centre, which covered topics including: understanding change, urges and cravings, problem solving, balanced living, and self-management planning;
d. The Applicant’s Community Corrections Officer and Initial Transition Support caseworker, who witnessed Mr Chand’s progress while in custody, stated that “Avnesh previously resisted support with his drug habit, and is now willing to be supported. Avnesh has not used drugs since his incarceration which has turned his life around”;
e. The Applicant has the support of his family, namely his wife, four young children, and his parents;
f. The Applicant’s domestic violence offence was an isolated incident and has been described by witnesses as “out of character” for the Applicant. No further offences of a similar nature have been committed since this incident in 2013;
g. The Applicant is motivated to stay out of trouble as he now understands the consequences that offending can have on his future in Australia and his children’s lives;
h. The Applicant has a demonstrated ability to live in the community in a law-abiding manner, as he spent around four years relatively offence free between 2014 to 2018;
i. The Applicant no longer associates with the people he was friends with when he was engaging in criminal conduct such a [sic] drug supply; and
j. The Applicant has resolved to abstain from drug use in the future. He has abstained from drug use while in prison and immigration detention and, maintained good behaviour and avoided any incidents while in custody.”[35]
[Internal footnotes omitted]
[35] A1, pages 7-8, para [49].

In the Applicant’s evidence-in-chief, he was asked about his capacity to source further counselling as an ameliorating means of regulating his recidivist risk. This is what he said during his evidence-in-chief:
“Mr Bhutani: And, Mr Chand, from your psychology appointments and these other programs, what are some of the things you’ve taken away, or you’ve learnt?
Applicant: Basically how to react and how to control my behaviour. It’s a number of things. And how to, you know, approach - and there’s a lot of opportunities - it gives you a lot of opportunities. Yes, you can talk to your family and basically with a doctor or seek extra help - even online services like for getting help on, or counselling and everything. It’s not always face to face. You can develop things over the phone these days and even on video call. And now I know that basically if I’m struggling or anything, or something, there is - it’s not - it’s not going to affect me by calling me and saying that, ‘Oh, I need help,’ and everything. At the beginning because I had young kids and everything sometimes I thought, look, it might be wrong, you know, people might think wrong of me. But, no, I’ve realised that it’s good to seek help and get more opportunity to basically go and work on myself for doing wrong things and stuff.”[36]
[36] Transcript, page 15, lines 11-25.
Further in his evidence-in-chief, the Applicant was asked about his capacity to refrain from returning to a propensity to abuse illicit drugs which was a significant factor behind his past serious offending. He responded thus:
“Mr Bhutani: Mr Chand, one of the main things the tribunal is going to be concerned about in this matter is you returning to drug use. What do you say about the potential risk for you to return to drug use?
Applicant: I reckon - I’ve came so far. I have seen drugs next to me and I’ve seen a number of things happening and everything, and I’m so confident to walk away from it now and stuff, and when I go out I’m seeking already planning - I’ve spoke to my family too that I will [sic] more help and more counselling and back to work plan. I’ve got - I’ve already made some future plans already to go. And personally once I get out of here I do want to go seek more counselling to help me prevent, you know, repeating any drugs or doing any bad things to the community and stuff. I do have a great support from community and my family, so that will help me.”[37]
[37] Ibid, lines 36-47.
In its SFIC, the Respondent contended that:
“The Minister contends that there is a risk that the applicant will reoffend (8.1.2). The Minister accepts that there is evidence that the applicant has engaged in some limited rehabilitation and demonstrated remorse insofar as his conduct impacted him and his family.”[38]
[38] R1, page 6, para [27].
During the Applicant’s cross-examination, the Respondent sought to impugn the Applicant’s evidence as to recidivist risk. That challenge to the Applicant’s evidence was configured thus:
·it was suggested to him that he was minimising his offending by, for example, presenting a different version of what a complainant/victim of his offending had told police[39];
·that based upon certain sentencing remarks made by a previous sentencing Magistrate (Her Honour, Ms Ellis, SM) in November 2019, who noted, “Mr Chand, I deal with people who make mistakes all the time. You just do not seem to be learning.”[40] – it was put to the Applicant that it is difficult for the Tribunal to be convinced that his entrenched pattern of offending is now a thing of the past and that he should not now be believed in terms of his claim to represent a low recidivist risk[41];
·that his brother’s removal to New Zealand (on account of his criminal conduct) represented a warning to this Applicant about the adverse impact of offending in Australia upon a non-citizen’s right to remain here[42];
·that while the Applicant claimed to have taken up the abuse of illicit drugs after sustaining a back injury in 2019, such evidence should not be accepted because there are a number of references in the material to him taking illicit drugs in and around 2012-2013[43];
·that much of his offending was committed as the result of negative peer associations who were also involved in the taking of illicit drugs and consequential offending resulting from that predisposition (to use illicit drugs)[44];
·that while he now claims that the responsibility involved in caring for his infant children and his ageing and infirm parents represent protective factors against future offending, those two elements were already present in his life when he compiled most of his history of serious offending in this country[45]; and
·that his claims about not being able to afford the costs and fees relating to ongoing rehabilitation and/or counselling in the past make it difficult to now accept his asserted intention to engage himself more substantially in this process because he is not working and will not have access to available funds to afford such treatment. He purported to suggest that he could rely on his parent’s and their savings to meet the cost of such treatment.[46]
[39]    See Transcript, page 40, lines 31-47.
[40]    G7, page 73, lines 42-43.
[41]    See Transcript, page 49, lines 16-47 and page 50, lines 1-24.
[42]    Ibid, page 50, lines 26-44.
[43]    Ibid, page 51, lines 1-41.
[44]    Ibid, page 52, lines 6-46.
[45]    Ibid, page 53, lines 1-4.
[46]    Ibid, lines 25-37.
(ii)     Evidence of rehabilitation achieved by the Applicant by the time of this decision
The singularly most current and independent document about the Applicant’s recidivist risk is the report of the psychologist, Ms Julie Dombrowski, dated 1 March 2022.[47] As mentioned at the commencement of these reasons, Ms Dombrowski also provided oral evidence at the hearing.
[47] A4.
Ms Dombrowski conducted an audio-visual link conference with the Applicant that lasted for approximately three hours. She arrived at the conclusion that the Applicant represented a low-moderate recidivist risk, and that this assessment of risk can be reliably applied across both violent and non-violent offences.[48] To the extent the Applicant represents a recidivist risk, Ms Dombrowski opined that he was more likely to commit non-violent offences as opposed to violent offences.
[48] Ibid, page 21, para [32].
In her evidence-in-chief, Ms Dombrowski was taken to a range of factors referable to the Applicant and her views were sought on the extent, if any, to which any of those factors spoke to the Applicant’s recidivist risk. First, she was taken to the element of the support the Applicant has received from his family – specifically his parents and his ex-wife – and the extent to which this factor could impact on his recidivist risk. Ms Dombrowski stated that the Applicant’s family, “…is quite a prosocial family. His parents are actively engaged in their religious community. They do not have a criminal history. They’re supportive of him being actively engaged in parenting his children.”[49] Ms Dombrowski went on to say that, “…having those prosocial familial supports around you can make a huge difference for effecting somebody’s behaviour changes in the future and their own changing or development of prosocial attitudes and behaviours.”[50]
[49] Transcript, page 64, lines 16-19.
[50] Ibid, lines 21-24.
Second, Ms Dombrowski was taken to the Applicant’s relationship with his children and asked about the impact of that factor in terms of the Applicant’s recidivist risk. She said, “I think that Mr Chand’s children are really significant internal motivators for his own behaviour change…he became quite tearful in talking about his children and his distance from his children and his fear of what will happen to his children if he were no longer able to maintain contact with him [sic].”[51] Ms Dombrowski was of the view that the Applicant’s children represent a, “significant protective factor in his life.”[52]
[51] Ibid, lines 27-29 and lines 37-40.
[52] Ibid, line 40.
Third, Ms Dombrowski was taken to the absence of any diagnosis of an anti-social personality disorder in this Applicant and her views were sought as to what the absence of such a diagnosis might mean for this Applicant’s recidivist risk. This is what she said in response:
“Ms Dombrowski: So that's a positive prognostic factor. So when somebody has an antisocial personality disorder, they are much harder to change. They are much harder to change those very well embedded thoughts and behavioural patterns. That Mr Chand does not have an antisocial sort of personality style or disorder means that he is more able to adapt and change to a more prosocial lifestyle and more prosocial factors - behaviours. So it makes him more receptive to criminogenic treatment.”[53]
[53] Ibid, lines 44-47 and page 65, lines 1-4.
Fourth, Ms Dombrowski was asked to turn her mind to the Applicant’s claimed abstinence from any drug use during his time in both criminal custody and immigration detention and the extent to which such claimed abstinence could now be said to speak positively in favour of a low recidivist risk. She appeared to predicate her comments on the reality that the Applicant’s claimed abstinence had occurred in the closed confines of criminal custody and then immigration detention, but is yet to be tested in the broader community:
“Ms Dombrowski: Again, I think that's a positive prognostic factor. I think his ability to abstain while in a secure environment when we do know that illicit substances are available in those secure environments, his ability to abstain where there would be plentiful antisocial peer influence around him is quite positive. Having said that, sometimes people are able to abstain in a secure environment but struggle more so with relapse in the community when they're not being monitored. So I think that's a positive indicator. It would be even more positive if we could see a period of long term abstinence while not in a secure environment but is in the community.”[54]
[54] Ibid, page 65, lines 10-18.
Fifth, Ms Dombrowski was asked to comment on the level and extent of the Applicant’s remorse in relation to his criminal history. Consistent with the point sought to be made by the Respondent during the Applicant’s cross-examination, Ms Dombrowski stated that the Applicant tended to minimise responsibility for his offending. Importantly, she sensed a differentiation in the Applicant’s levels of remorse between (1) his acknowledgement of responsibility for his offending, compared to (2) the impact of his offending on his family, primarily his parents and his children:
“Ms Dombrowski: Yes. Mr Chand tended to kind of minimise his responsibility for offending. He was you know, he portrayed himself somewhat as a victim of circumstances but what I did notice is I didn't have to challenge very hard to ask him to reconsider that and he acknowledged that actually there is something that he brings to his offending. He is ultimately responsible for his offending and the associations that he makes and his use of drugs. He was remorseful I would say, primarily for the impact of his behaviours on his family. On his grandparents, his children. Of course he feels sorry for himself in that he's now facing deportation and he is not allowed to live in the community but more than anything, it would seem he is most remorseful regarding the pain and suffering that he's caused his family.”[55]
[55] Ibid, lines 22-33.
Sixth, this issue of the Applicant’s qualified acceptance of responsibility was put to Ms Dombrowski, with particular reference to the Applicant’s recidivist risk. She said this:
“Ms Dombrowski: That has a big impact on risk of reoffending. So quite obviously if you don't see that there's a problem with your behaviour or your behaviour doesn't cause any problems for other people, there is really no need to change your behaviour. That he has (indistinct) that his behaviour, whether or not it's because of his doing or someone else's doing, ultimately his decisions and his behaviour have led to a negative impact for people who he cares about, I would say is a significant driving force for then achieving behaviour change from that point. And I would say a very important first step to realising that you need to make some changes in behaviour.”[56]
[56] Ibid, lines 37-45.
Ms Dombrowski stated that the way in which an offender expressed his remorse, or whatever might be motivating that remorse, is not necessarily and directly relevant to a person’s recidivist risk:
“Mr Bhutani: So am I correct in understanding your evidence that clinically whatever might be motivating his remorse doesn't bear relevance on his risk of future offending?
Ms Dombrowski: No, the presence of remorse is a significant factor and that remorse might be different for different reasons but yes, it does - it has a positive impact on one's ability to reduce their risk of recidivism.”[57]
[57] Ibid, page 66, lines 1-5.
Seventh, Ms Dombrowski was taken to the Applicant’s prior participation in psychological intervention, and, in particular, was asked about the extent to which the Applicant’s apparent willingness to participate in such programs speaks to his future recidivist risk, or how it could inform the assessment of such risk. She stated that, in her opinion, the Applicant’s participation in psychological intervention thus far has been, “significant”:
“Ms Dombrowski: Yes, so he to date has engaged in the remand addiction program, it's about a 20 session program. It's a significant commitment…And he's also participated in the positive lifestyles program which is about an eight session program. So his willingness to engage in those programs because they - that was what was made available to him speaks positively I believe to his openness to engaging in treatment and personal development and recovery.”[58]
[58] Ibid, lines 10-12 and lines 14-18.
Eighth, Ms Dombrowski was referred to the Applicant’s history of employment and of participating in his local community by way of volunteering and how these elements spoke to his recidivist risk. She was of the view that it is clinically rare for anti-social people to maintain a commitment to education, employment and a willingness to contribute to their local community. She stated:
“Ms Dombrowski: So you would see a history of employment and positive, you know, good work ethic and commitment to education and voluntary contributions to community, whether it be school or religious or otherwise as indicators that someone is prosocially engaged and certainly it's counter to an antisocial personality style.”[59]
[59] Ibid, lines 26-30.
Finally, Ms Dombrowski was taken to the Applicant’s age, comprising some 36 years, and was asked to comment on the extent to which his age speaks to his recidivist risk. This is what she said:
“Ms Dombrowski: So what we would hope to see and what we would typically see is that the social immaturity often comes with youth should be well and truly passing by now. There would be a settling and a maturity within one's development. His age is not such that he is so crystallised in his way of life. He has flexibility and adaptability. Admittedly it would have been good to have seen those changes happen a little bit sooner but 36 is - I wouldn't say over the hill.”[60]
[60] Ibid, lines 33-39.
Certain questions were put to Ms Dombrowski during cross-examination as a means of challenging her findings. First, she was challenged about her use of the self-appraisal questionnaire and whether or not one could safely rely upon a person’s self-reporting as a basis on which to assess recidivist risk. Ms Dombrowski, to my mind, adequately responded to this challenge to her evidence by saying the following:
“Ms Dombrowski: The reason why I liked to use the self-appraisal questionnaire is that it gives an assessment - it separates violent offending and non-violent offending because they have two very different kind of sort of - they're two very different kinds of offending… A lot of the other risk assessment tools just sort of categorises - so you put someone in a category of low or medium or high but there's no sort of understanding of what that means.
…
Ms Strugnell: Okay. And given it's a self-appraisal questionnaire and it's therefore very much based on Mr Chand's own response, if he were - if it were the case that he hadn't answered the questions honestly, could that potentially skew the results?
Ms Dombrowski: Yes. So it is a self-appraisal questionnaire and surprisingly the psychometric evidence for that or the data for that is just as good as non-self appraisal questionaries which I know sounds surprising.”[61]
[61] Ibid, page 68, lines 27-30; lines 33-36; lines 46-47 and page 69, lines 1-4.
Second, Ms Strugnell was taken to the evidence around the Applicant’s negative and anti-social peer associations and the reality that he has formed such associations across two different geographic locations. She was taken to a scenario where the Applicant is released into the Australian community, and if so, the extent to which the Tribunal can now be satisfied that he will not again form such negative and anti-social peer associations, such as to again give rise to a propensity for him to seriously offend. Ms Dombrowski saw a way of Mr Chand being taught how to be a better judge of character via further participation in the criminogenic treatment process:
“Ms Strugnell: What else would he need to address in order to prevent?
Ms Dombrowski: Prevent it from happening again?
Ms Strugnell: Yes?
Ms Dombrowski: Yes, so it's one thing knowing that hanging out with anti-social individuals is bad for you. It's another thing knowing how to identify them, how to avoid them… So that's what we would need to do with Mr Chand if he were to relocate or to disassociate with anti-social peers, we need to then teach him how to be a good judge of character and how to withdraw from those characters without feeling like you're somehow offending them, and how to form positive social peers.”
Ms Strugnell: You specifically used the word "teach" there. Who would teach him? Who do you anticipate would teach him?
Ms Dombrowski: Yes, so when you go through some kind of criminogenic treatment program, they're the sorts of skills that are often covered in that sort of - those programs. So they're the sort of teachables that happen in those programs.”[62]
[62] Ibid, page 69, lines 19-24 and lines 30-41.
Third, Ms Dombrowski was taken to the claimed protective factor represented by the Applicant’s parents in terms of future recidivist risk, yet his parents were a presence in his life for all of his past offending. She was specifically asked that while he has always had the support of his parents, how is their support going to be any more protective into the future than it has been in the past? Ms Dombrowski responded with the following:
“Ms Dombrowski: Yes, that's a good question. So having protective parents is a good factor but not the only factor, and we often might see this with adolescents, for example, there's always been protective parents for home and yet they continue to make decisions that are not in their best interests. They continue to engage in substance use and associate with anti-social peers. So that the parents have always been protective and are still protective now is a positive but it's not the only. We now need to - he needs to pay attention to these other factors that allows him to capitalise the presence of his protective parents”.[63]
[63] Ibid, page 70, lines 5-13.
Fourth, Ms Dombrowski was taken to a contradiction in the Applicant’s evidence deriving from the extent to which he can now reliably say that he accepts responsibility for his offending history in circumstances where he maintains a tendency to blame past negative peer associates for causing him to adopt a position of, “well, you know, it wasn’t me” or, “wrong place wrong time”.[64] The corollary was put to Ms Dombrowski – that is, to what extent can the Applicant now claim to really accept responsibility for what he has done? In particular, the Respondent’s representative framed her question thus:
“Ms Strugnell: Is it possible to determine whether he just said that he did when challenged because he was saying what you wanted to hear or whether it was a genuine insight into that offending?
Ms Dombrowski: Yes, so, yes, I struggled with that inconsistency as well, in his self-report and my thinking on that is that it's perhaps not unsurprising that he has that ambivalence in his mind. This is a man who hasn't engaged in any criminogenic treatment programs, that is for the purpose of challenging those views and those anti-social kinds of attitudes. So he's kind of, he's in the beginning phases of challenging that… So I would say he is sitting with a little bit of ambivalence still at the moment but that there - I think that acknowledgement that there's something that I'm doing here that's problematic, I think that's genuine.”[65]
[64] Ibid, lines 20-21.
[65] Ibid, page 70, lines 22-30 and lines 39-41.

In the SFIC filed on behalf of the Respondent, the contentions about the extent to which this Other Consideration (b) has application were neatly encapsulated in a single paragraph:
“The Minister contends that, while the applicant may face some obstacles, he will be able to establish himself and maintain basic living standards (9.2(1)). The applicant is relatively young and healthy, although it is accepted that he suffered a back injury which causes him ongoing pain (9.2(1)(a)). In any event, the Minister contends that this does not present a significant impediment if removed. The applicant spent his formative years in New Zealand and will not face substantial language or cultural barriers (9.2(1)(b)). The applicant will also have access to the same level of social, medical and economic support as what is generally available to other citizens of New Zealand (9.2(1)(c)). Relevantly, this would include access to mental health and rehabilitation services should the applicant wish to avail himself of them.”[112]
[112] R1, page 8, para [37].
Sub-paragraph 9.2(1)(a): the Applicant is 36 years old, due to turn 37 in June of this year. In his PCF, the Applicant answered the question, “Do you have any diagnosed medical or psychological conditions?” by ticking the “yes” box. In his PCF, he particularised his medical difficulties, stating:
“In March 2018 I was in a workplace accident which left me unable to continue employment, due to said accident I was placed on work cover awaiting an operation I had in September of 2018. During this time I was placed on heavy medication due to the pain inflicted by the accident and to help with the recovery of back surgery. Unfortunately the effects of the medication led me to self medicate both legally and illegally. It has been a long and painful process both physically and mentally. I was attending counselling to attempt to rectify some of the issues caused by the accident…
…Unfortunately the counselling I was attending I was unable to continue due to the unforeseen events regarding covid-19. I am however pleased to say recently I was given the all clear by work cover doctors and placed in a Back to Work plan including physio and therapy with regular check ups and medication review monthly…”[113]
[113] G16, pages 125-126.
It should also be noted that in his PCF, the Applicant records that he was then[114] taking Lyrica, Endep, Voltaren and Panadol Osteo. It is clear the Applicant did suffer from duly diagnosed medical issues as a result of his abovementioned work accident in March 2018. It is also clear the medical authorities have given him the, “all clear” and have formed the view he is not fit to return to active work duties. Whatever ongoing counselling and treatment the Applicant may require for any residual symptoms remaining from that work incident, he will surely be able to source in the event he is removed to New Zealand. This includes the list of medications he was taking during the recovery phase of the work injury. It is safe to assume that if he requires some or all of that medication on an ongoing basis, he will be able to source it in New Zealand.
[114] The PCF is dated 20 September 2020.
I am not of the view that the Applicant’s age and present state of health represent significant or insurmountable impediments to his return and resettlement in New Zealand.
Sub-paragraph 9.2(1)(b): the Applicant was born in Fiji in 1985 and migrated to New Zealand with his family when he was approximately one year of age (in or about 1986). He says he enjoyed his childhood in New Zealand and after spending five years in that country, his family eventually migrated to Australia.[115] The family settled in Australia on a permanent basis in 2001 and the Applicant completed his secondary schooling in Sydney in 2003.[116]
[115] A2, page 1, para [7].
[116] Ibid, pages 1-2, paras [10]-[11].
It is thus difficult to accept that the Applicant will be confronted with any language or cultural barriers upon a return to New Zealand. As has been found by this Tribunal (differently constituted) in a previous case: “New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.[…]”[117] I am therefore not of the view that the Applicant will face any significant or substantial language or cultural barriers impeding his return and re-settlement in New Zealand.
[117] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 (“Tera Euna”), para [101].
Sub-paragraph 9.2(1)(c): As mentioned earlier, I am not satisfied that the Applicant’s age and state of health present any impediment(s) upon a return and re-settlement in New Zealand. To the extent he may require social and/or economic support in that country, he will have available to him precisely the same that which is available to other citizens of New Zealand, which is a country with, broadly speaking, similar systems and institutions of social welfare and support.
The same finding can be made in relation to any medical support he might need in New Zealand. It is difficult to conceive that he will not be able to access the same type of physical and psychological therapies in New Zealand that he has sought in Australia, either in relation to his post-work incident physical injuries and psychological counselling, or for any difficulties with illicit substances. Once again, the authority of Tera Euna and Minister for Immigration and Border Protection[118] becomes relevant:
“New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.”[119]
[118] Ibid.
[119] Ibid, para [101].
Having regard to my findings referable to each of the three sub-paragraph components of this Other Consideration (b), I am of the view that it – put at its highest – confers only a slight amount of weight in favour of revocation of the delegate’s decision under review.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community, including victims of the non- citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Respondent has not called evidence about any impact the Applicant’s continued presence in Australia would have on his victims. Without such evidence, it would be irresponsible of me to enter the realm of conjecture and speculate about the extent of any impact this Applicant’s offending has had, or would have, on any of its victims.
That said, I must have regard to the evidence from the Applicant’s mother wherein she speaks favourably about the Applicant remaining in Australia. Such a statement could possibly attract discussion pursuant to the authority of PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[120] [I am mindful of the comments of Kerr J in that decision to this effect:
“[57] I am satisfied that nothing in CGX20 as has settled the construction to be given to cl 14.4 [the precursor to paragraph 9.3(1) of Direction 90] requires, contrary to that guidance, a victim to be heard only as to such impacts as weigh in favour of the cancellation of a visa. I reject that DKN20 requires it.
[58] It can be accepted that usually such impacts will weigh in favour of the cancellation of an offender’s visa.
[59] Usually, but not always.”[121]
[120] [2021] FCA 1235.
[121] Ibid, paras [57]-[59].
To my mind, it is therefore safe to make reference to and to have reliance upon the evidence of the Applicant’s mother – a victim of his offending – wherein she very positively implores this Tribunal not to remove the Applicant to New Zealand. Therefore, this Other Consideration (c) carries a slight amount of weight in favour of revocation of the delegate’s decision under review.
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I will consider each in turn.
(1) Strength, nature and duration of ties
With reference to the first part of this Other Consideration, I will consider three elements. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, “immediate family members” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature, and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
The initial exercise involves identification of the Applicant’s immediate family in Australia. As best I understood his evidence, the Applicant’s immediate family in Australia comprises his mother and father. In her written statement, dated 10 February 2022, the Applicant’s mother said:
“My husband and I both really want Avnesh to come home to us. I love my son and I always will. I miss him so much, I always think about him and I do lots of prayers for him to come back to us. I can’t sleep at night, I’m always thinking about Avnesh. I’ve had to ask my doctor for sleeping tablets to help me sleep.”[122]
[122] A2, page 32, para [30].
In her oral evidence, the scenario of a possible removal of the Applicant to New Zealand was put to the Applicant’s mother and she responded thus:
“Mr Bhutani: What about if Avnesh had to leave Australia and had to go back to New Zealand? How would the kids - - -?
Applicant’s mother: I’m going to die. Don’t say that word. He is (indistinct) my lovely son (indistinct). He is the one looking after me. I can’t stay without him. Doctor told me that you’re not going to be (indistinct). I miss him so much. I don’t want him go leave me alone and go back anywhere.”[123]
[123] Transcript, page 46, lines 1-6.
In his written statement, dated 9 February 2022, the Applicant’s father spoke about the close bond the Applicant has with both of his parents. He spoke of a closeness with the Applicant which has endured, despite the circumstances his above-described offending and the difficult position into which this has placed both parents having to act as surrogate parents of the three eldest children. It appears from the Applicant’s statement that not only will his parents miss him in the emotional sense due to his absence from Australia, both parents want to continue to support the Applicant – in one way or another – upon his return to the community:
“11. He always respected us and we rarely fought. If he disagreed with something we did or said, he would tell us calmly. He always talked to us nicely…
28. We love him and we will be close no matter what. He is our youngest and we will always love him. Sometimes in life things happens in family’s but then you get over it and move on. We are happy to support him in any way that we can if he can leave detention. There is nothing to stop him coming to me whenever he wants and staying out our place if he wants.
29. I hope one day he can take our house and live here with the kids. We can’t take the house with us when we’re dead so I hope he takes it.
30. My wife and I are getting older and frailer. My wife has had many operations due to thyroid cancer. We can’t take care of the kids forever; we need him to take over soon. I only work four hours a day as a bus driver so I cannot continue to provide for them forever. We are both 64 years old now and cannot continue to do all this in the long-term….
38. They miss their dad and they want him home. If Avnesh is given the chance, I know he will continue to be a positive part of his children’s lives.
39. He is a good man although he has made mistakes in the past. His mistakes are only a very small percentage of who he is and what he offers to the people in his lives.
40. He is a great human being who deserves to have his life back and we all deserve to have him back as well.”[124]
[124] A2, page 34, para [11]; and page 36, paras [28]-[30]; and page 37, paras [38]-[40].
During his evidence-in-chief, the Applicant was asked about whether it was feasible for the Applicant and his wife to travel to New Zealand to see the Applicant (in the event of the Applicant’s removal to that country). There are obvious financial and other difficulties with the parents making such a trip(s):
“Mr Bhutani: If Avnesh did have to go to New Zealand, do you see it as feasible for you and your wife over to New Zealand?
Mr Chand: It would be very hard for us for this stage because we have to look after the kids and we haven't any money to go there and here, but if we are still here, if he is with us and we can manage it safely and do everything, you know.”[125]
[125] Transcript, page 87, lines 23-27.
There is no doubting the proximity, currency, and critical importance of the Applicant’s relationship with his parents. It can be accepted as proximate because when he was in the community, he and the three eldest children lived with them. The Applicant and those three children will do so again if he is returned to the community. It is current because the parents say so and because the Applicant wants it, and indeed needs it to be so, for him to have the safest possible landing, or resumption of his life, upon a return to the community. It has been a critical relationship because – but for the parents – it is difficult to understand just where and with whom the three eldest children would have resided during this period of the Applicant’s time in custody, followed by immigration detention.
Having regard to the state of the evidence and circumstances surrounding the Applicant’s parents, I am safely led to the view (and finding) that the strength, nature, and duration of his ties to those particular immediate family members in Australia carries a heavy level of weight in favour of revocation. I make this finding on the presumption that each of the Applicant’s parents are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2. Strength, nature, and duration of “other ties” – length of residence
There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, the Applicant migrated to Australia with his family in 2001. I have earlier detailed his movements in and out of Australia since 2001. Since that time, he has spent the overwhelming period of his life in Australia.
I will now make reference to the two tempering sub-elements in paragraph 9.2(a) of the Direction. The first of those compels me to allocate less weight if the Applicant began offending soon after arriving here. He arrived and settled in Australia, with his family, in 2001. His first conviction in an Australian court occurred in July 2004 – some three years after his arrival. He arrived here as a fifteen-sixteen-year-old and began his offending as a nineteen-year-old. A period of three years post-arrival should not be construed as being “soon after arriving in Australia”. The first of these two tempering sub-elements should be put to one side and rendered neutral.
The second of the two tempering sub-elements compels an assessment of the extent of the Applicant’s positive contributions to the Australian community. I have already found the Applicant has a solid history of employment in Australia. He will have paid taxation on the income he derived and would thus have made a contribution towards this country’s coffers from which the Australian community is sustained. The material also contains reference to the Applicant’s voluntary contributions to the community. In his PCF, he says:
“I have also attached some character references from not only my children’s school, where I have been an active member volunteering for there (sic) school canteen but whenever else possible. I also have references from my elderly neighbours where, in the past, I helped out any way possible.”[126]
[126] G16, page 126; see also G26, page 150 – reference of Ms Dianne Walsh; see also G27, page 151 – short reference of Marius and Dennise Sorensen; see also G28, page 152 – reference of Mr Morris Robinson.
Ms Dombrowski also noted the Applicant’s solid history of employment and volunteering in Australia. In her oral evidence, she said:
“Mr Bhutani: And again, you touched briefly on this earlier but I might get you to comment on it specifically. Mr Chand's employment and history of volunteering?‑‑‑
Ms Dombrowski: Yes. So we would often see in antisocial persons, you don't see such a great commitment to education and employment and just a minimal stake in community basically. So you would see a history of employment and positive, you know, good work ethic and commitment to education and voluntary contributions to community, whether it be school or religious or otherwise as indicators that someone is prosocially engaged and certainly it's counter to an antisocial personality style.”[127]
[127] Transcript, page 66, lines 23-30.
The second tempering sub-element can thus be applied in favour of this Applicant due to his positive contributions to the Australian community via his engagement in remunerative employment and his volunteering efforts at the school his children attend, and more generally. Therefore, while the first tempering sub-element can be found to be neutral, the second one can be applied in his favour to attract more weight to this Other Consideration (d) for the purposes of revoking the decision to mandatorily cancel his visa.
3. Strength, nature, and duration of “other ties” – family and other social links
In his PCF, the Applicant recorded the following other close family members, including in-laws, cousins, grandparents, uncles / aunts – plus – other relatives he has in Australia. There is little or no evidence about how the these, “other ties” will be impacted by a non-revocation decision:
“List other close family members including in-laws, cousins, grandparents, uncles / aunts

Full name

Relationship to you

Date of Birth

Nationality

Country of Residence

Vandhana Nickar

S/inlaw

Fiji

Aust

Aleesha Chand

Niece

Aust

Aust

Reihana Chand

Niece

Aust

Aust

State how many other relatives you have in Australia or overseas

In Australia

Other country – specify

Number of uncles / aunts

ONE

Number of nieces / nephews

TWO

Number of cousins

NOT SURE (LOTS)

Number of grandparents

TWO

…”[128]
[128] G15, page 119.

Perhaps, more importantly, is the, “other ties” subsisting between the Applicant and Ms Devi. In her written statement, dated 10 February 2022, she said:
“23. Avnesh and I talk every day and are kind of unofficially together. We give each other a lot of support. We have talked about getting back together properly if he gets out.”[129]
[129] A2, page 39, para [23].
The Applicant gave analogous evidence, both in writing and at the hearing:
“Mr Bhutani: And, Mr Chand, you mentioned there (indistinct) about your relationship with the kids’ mother. What’s that relationship like now?---
Applicant: It’s - it’s actually - it’s getting stronger and stronger. So that’s another - another thing I need to think about, because I think - it’s like - it’s coming to the stage where we might in future - we might get back together and work things out, because having - staying apart from this long, me being here, and you know, talking to her basically every second day because she’s - my youngest son is there - and talking to her, it’s basically bringing us more closer and closer. So hopefully in future wise if everything works out we might be getting back together and both - we’re willing to - we have (indistinct) few things. So (indistinct) both getting some help - counselling - family counselling and everything, and see if we can have our own start. So it’s all positive. She’s been a very supportive person and she understands I did some wrong things, and she’s done wrong things, but at the end of the day I blame myself where I am right now and everything and stuff - so, but she is - she is very helpful, you know. She’s been there for me.”[130]
[130] Transcript, page 20, lines 22 – 46; and page 21, lines 1 – 2.

The combined effect of the evidence of Ms Devi and the Applicant leads me to a finding that Ms Devi would be adversely impacted by an outcome resulting in the Applicant’s removal to New Zealand.
Ms Monica Narayan describes herself as a long-term friend of the Applicant. They met at high school when she was in Year Ten and he in his final year. She says, “we met through mutual friends at school and became good mates quickly.”[131] She adds that:
“5. Between the ages of sixteen to twenty-eight years old Mr Chand and I saw each other very often, usually around five times a week. We spent our time like any other person our age; hanging out, going out to eat, going for drives etc. In those twelve years, I got to understand and know Mr Chand very well as a person.”[132]
[131] A2, page 41, para [4].
[132] Ibid, para [5].
Ms Narayan describes the Applicant as a good and loyal friend. She is aware of his offending, but adds:
“22… I believe his past actions are not consistent with who he really is and won’t be repeated. I know he is capable of acting in a lawful manner moving forward.
23. I strongly believe that Mr Chand is a truly genuine and honest person who can help so many others around him if given the chance. He is an asset to everyone in his life and deserves the chance to be there for his kids.
24. I write this statement in good faith and would be happy to answer any questions at Mr Chand’s hearing...”[133]
[133] Ibid, page 43, paras [22]-[24].
While not called to give oral evidence, I am of the view that it can be safely found that were the Applicant removed to New Zealand, Ms Narayan would be impacted by the loss of a friend she has known and valued for over half her life. It can thus be accepted that – based on the evidence of Ms Devi and Ms Narayan – the Applicant does have other, “family and social links” with them.[134] This third component of Other Consideration (d) facilitates the allocation of weight in the Applicant’s favour towards the revocation of this decision to mandatorily cancel his visa.
[134] I make this finding on the presumption that each of Ms Devi and Ms Narayan are either Australian citizens, Australian permanent residents, or people who have a right to remain in Australian indefinitely, noting the pending nature of Ms Devi’s visa status referred to earlier in these reasons: see Transcript, page 80, lines 1-14.
(2) Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australian community
Referring firstly to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above referred elements – that the totality of the evidence points to the allocation of a heavy level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a heavy level of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
I summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: carries a slight measure of weight in favour of revocation;
(c)impact on victims: carries a slight measure of weight in favour of revocation; and
(d)links to the Australian community: carries a heavy level of weight in favour of revocation.
conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa
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.
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, level of weight against revocation;
·Primary Consideration 2: weighs moderately, but not on its own, determinatively, against revocation;
·Primary Consideration 3: weighs very heavily in favour of revocation;
·Primary Consideration 4: carries a certain, but not determinative weight, against revocation;
·I have outlined the weight attributable to the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to each of Primary Consideration 3 and Other Considerations (b), (c) and (d) are sufficient to outweigh the combined weight I have allocated to Primary Considerations 1, 2 and 4;
·A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours revocation of the Delegate’s decision, made on 30 December 2021, such that the Applicant’s visa status to remain in Australia should be restored to him.
Consequently, I find there to be “another reason” as to why the cancellation decision of 30 December 2021 should be revoked for the purposes of s 501CA(4)(b)(ii) of the Act.
decision
The decision under review is set aside and a decision in substitution is made revoking the original visa cancellation decision.

I certify that the preceding 230 (two-hundred-and-thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.......................[SGD].............................
Associate
Dated: 1 April 2022

Date of hearing: 7 and 8 March 2022

Counsel for the Applicant:

Solicitors for the Applicant:

Mr Dev Bhutani

Karen Guevarra (Legal Aid NSW)

Solicitor for the Respondent Ms Jennifer Strugnell (Senior Associate –
Minter Ellison)
Annexure A – List of Exhibits

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 – G79, paged 1 – 268)

R

-

24 Jan 2022

A1

Applicant’s Statement of Facts, Issues and Contentions (16 pages)

A

10 Feb 2022

14 Feb 2022

A2

Applicant’s Evidence Bundle (Documents 1 – 7, paged 1 – 45)

A

-

14 Feb 2022

A3

Applicant’s Supplementary Statement of Facts, Issues and Contentions (4 pages)

A

28 Feb 2022

28 Feb 2022

A4

Applicant’s Supplementary Evidence Bundle comprised of Expert Report of Dr Julie Dombrowski (paged 1 – 23)

A

-

28 Feb 2022

R1

Respondent’s Statement of Facts, Issues and Contentions (9 pages)

R

21 Feb 2022

21 Feb 2022

R2

Respondent’s Supplementary Documents (S1 – S8, paged 1 – 220)

R

-

21 Feb 2022

Full name	Relationship to you	Date of Birth	Nationality	Country of Residence
Vandhana Nickar	S/inlaw	Fiji	Aust
Aleesha Chand	Niece	Aust	Aust
Reihana Chand	Niece	Aust	Aust

In Australia	Other country – specify
Number of uncles / aunts	ONE
Number of nieces / nephews	TWO
Number of cousins	NOT SURE (LOTS)
Number of grandparents	TWO

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 – G79, paged 1 – 268)	R	-	24 Jan 2022
A1	Applicant’s Statement of Facts, Issues and Contentions (16 pages)	A	10 Feb 2022	14 Feb 2022
A2	Applicant’s Evidence Bundle (Documents 1 – 7, paged 1 – 45)	A	-	14 Feb 2022
A3	Applicant’s Supplementary Statement of Facts, Issues and Contentions (4 pages)	A	28 Feb 2022	28 Feb 2022
A4	Applicant’s Supplementary Evidence Bundle comprised of Expert Report of Dr Julie Dombrowski (paged 1 – 23)	A	-	28 Feb 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (9 pages)	R	21 Feb 2022	21 Feb 2022
R2	Respondent’s Supplementary Documents (S1 – S8, paged 1 – 220)	R	-	21 Feb 2022