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

Climo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 38 (14 January 2022)
Division:GENERAL DIVISION
File Number(s): 2021/8158
Re:Benjamin Climo
APPLICANT

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

DECISION
Tribunal:L M Gallagher, Member
Date:14 January 2022
Place:Perth

The Reviewable Decision, being the decision of the Delegate dated 21 October 2021, not to revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa pursuant to s501CA(4) of the Migration Act 1958 (Cth) is affirmed.
............[Sgd]............................................................
L M Gallagher, Member
CATCHWORDS
MIGRATION – DECISION OF DELEGATE OF MINISTER NOT TO REVOKE MANDATORY CANCELLATION OF VISA – CHARACTER TEST – CRIMINAL RECORD – POSSESSION OF METHAMPHETAMINE – DIRECTION NO. 90 – PRIMARY AND OTHER CONSIDERATIONS – PROTECTION OF THE AUSTRALIAN COMMUNITY – FAMILY VIOLENCE – NATURE AND SERIOUSNESS OF CRIMINAL OFFENDING – RISK TO THE AUSTRALIAN COMMUNITY – BEST INTERESTS OF MINOR CHILDREN – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY – STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA – APPLICANT IS A 50-YEAR-OLD MAN WHO CAME TO AUSTRALIA AS A 24-YEAR-OLD – EXTENT OF IMPEDIMENTS IF RETURNED TO NZ – REVIEWABLE DECISION AFFIRMED.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(6B), 500(6L), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(c), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(a), 501CA(4)(b)(ii), 501G
CASES
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
Brown v Minister for Immigration and Border Protection [2015] 235 FCR 88
BSJ16 v Minister for Immigration & Border Protection[2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
FYBR v Minister for Home Affairs [2019] FCAFC 185.
Hambledon v Minister for Immigration & Border Protection[2018] FCA 7
Jagroop and Minister for Immigration and Border Protection [2015] AATA 751
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
HZCP Minister for Immigration and Border Protection (2019) 273 FCR 121
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Nigro v Secretary to the Department of Justice(2013) 41 VR 359
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Paeu and Minister for Immigration and Citizenship [2011] AATA 792
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SCJD and Minister for Home Affairs [2018] AATA 4020
Tanielu v Minister for Immigration & Border Protection (2014) 225 FCR 424
Tusitala v Assistant Minister for Immigration and Border Protection [2016] FCA 845
WAD 230/2014 v Minister for Immigration & Border Protection (No 2)[2015] FCA 705
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
YNQY v Minister for Immigration & Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation Under s501 and Revocation of a Mandatory Cancellation of a Visa Under s501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 90: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (08 March 2021) – paras 2, 3, 4(1), 5.1, 5.1(2), 5.1(3), 5.1(4), 5.2, 5.2(4), 6, 7, 8, 8(1), 8.1(1), 8.1(2), 8.1.1(1), 8.1.2, 8.1.2(1), 8.3, 8.4, 9, 9.1, 9.2, 9.3, 9.4
REASONS FOR DECISION
L M Gallagher, Member
14 January 2022

This is an application for a review of a decision made by a delegate of the Respondent
(the Delegate) on 21 October 2021 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act), the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa (the Visa) under s 501(3A) of the Migration Act (the Reviewable Decision).
The application for review was lodged with the Administrative Appeals Tribunal (the Tribunal) on 3 November 2021,[1] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
[1]R1, G2.
BACKGROUND FACTS
The Applicant is a 50-year-old man who was born in New Zealand and is a citizen of New Zealand and Canada.
The Applicant moved to Canada in 1974[2] and then to Australia in 1995.[3]
[2]A1b [9], A2 [3].
[3]A1b [9], A2 [3], R1, G13 p 60.
The Applicant first arrived in Australia on 4 November 1995,[4] when he was 24 years old. The Applicant was granted the Visa on the same date.[5]
[4]R1, G12 p 60.
[5]R1, G13 p 60.
Applicant’s offending
The Applicant’s criminal history is set out in a National Criminal History Check, dated 14 February 2019.[6]
[6]R1, G6 p 31.
On 18 September 2015, the Applicant was convicted of “Imported a marketable quantity of a border-controlled substance” (the Offence). On 20 November 2015, the District Court of Western Australia imposed on the Applicant a sentence of imprisonment of 7 years with a non-parole period of 4 years and 7 months.[7] The details of this conviction were recorded as follows:[8]
[7]R1, G6.
[8]R1, G6.

Court Date of conviction Date of offence Offence Penalty

Perth District

Court

18.09.15

(sentenced
20.11.15)

23.04.13 –

18.05.13

Imported a marketable

quantity of a border
controlled substance

7 years imprisonment

with a non-parole
period of 4 years and 7

months (backdated to commence 11.09.15)

The Applicant is currently detained at Bunbury Regional Prison in Western Australia.
The Applicant has maintained his innocence at all times, including the present.[9] The Applicant has sought assistance from the Edith Cowan University (ECU) Criminal Justice Review Project in reviewing his case, which is ongoing.[10]
[9]A1a [20]; A2 [25].
[10]A2 [27]; A3.
Present proceedings
On 5 March 2019, the Visa was cancelled by the Delegate under subsection 501(3A) of the Migration Act.[11] The Visa was cancelled on the basis that the Applicant did not pass the character test in s 501(7)(c) of the Migration Act by virtue of his having been sentenced to a term of imprisonment of 12 months or more.[12]
[11]R1, G14.
[12]Sections 501(6)(a) and 501(7)(c) of the Act.
On 5 March 2019, the Visa was cancelled by the Delegate under s 501(3A) of the Migration Act (the Cancellation Decision).[13] The Visa was cancelled on the basis that the Applicant did not pass the character test in s 501 of the Migration Act by virtue of his having been sentenced to a term of imprisonment of 12 months or more.[14]
[13]R1, G5 p 15.
[14]R1, G5 p 15.
On 28 March 2019, the Applicant requested the Cancellation Decision be revoked under s 501CA of the Migration Act and made representations in that regard.[15]
[15]R1, G19, G20.
After considering the Applicant’s representations, the Delegate made the Reviewable Decision on 21 October 2021.[16] The Applicant was notified of the Reviewable Decision on 25 October 2021.[17]
[16]R1, G4.
[17]R1, G3.
On 3 November 2021, the Applicant lodged an application in the General Division of the Tribunal for review of the Reviewable Decision.[18] Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
[18]R1, G2.
In his application for review, the Applicant gave the following reasons for seeking review of the Reviewable Decision:[19]
The Respondent has failed to consider all relevant materials that would suggest that the Primary Considerations weigh in favour for the revocation of the visa cancellation.
[19]R1, G2 p 7.
ISSUES
The Applicant does not dispute that he does not pass the character test.[20] The Tribunal, in any event, so finds: s 501(6)(a) of the Migration Act precludes a person from passing the character test if they have a “substantial criminal record,” which includes a person who has been sentenced to a term of imprisonment of 12 months or more.[21]
[20]A1(a) [11], A1(b) [11].
[21]s 501(7)(c) of the Migration Act.
[22]See [7] above.
On the basis that on 20 November 2015, the Applicant was sentenced to a term of imprisonment of 7 years,[22] he has a substantial criminal record as defined and therefore does not pass the character test.
Accordingly, the remaining issue is whether the Tribunal should exercise the power in s 501CA(4) of the Migration Act to revoke the Cancellation Decision.[23] That will require determination under s 501CA(4)(b)(ii) of the Migration Act, as to whether there is “another reason” why the decision to cancel the visa should be revoked,[24] having regard to the primary and other considerations in Direction No. 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No. 90).[25]
[23]Direction No. 90 para 5.1(3); below n 23.
[24]
[25]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), (08 March 2021).
The Tribunal’s decision must be made within the 84-day period after the day on which the Applicant was properly notified of the Reviewable Decision, in accordance with s 501G of the Migration Act. If the Tribunal does not deliver a decision by the end of this date, the Reviewable Decision will be taken to be affirmed, under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (pursuant to s 500(6L) of the Migration Act).
The 84-day period for the Tribunal to decide this matter ends on 17 January 2022.
THE HEARING
The hearing was held on 22 December 2021 at the Tribunal.
The Applicant was represented by Mr Tanguy Mwilambwe of Armstrong Legal and the Respondent was represented by Ms Jennifer Strugnell of Minter Ellison. The Applicant and the parties’ representatives appeared by videoconference. The Applicant’s witnesses appeared by telephone.
The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant called the following witnesses:
(a)Associate Professor James Freeman (Consultant Psychologist);
(b)Kelvin Climo (Applicant’s father);
(c)Eliza Climo (Applicant’s daughter); and
(d)Jennifer Climo (Applicant’s mother).
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC) (undated), filed on 7 December 2021 (A1(a));
(b)Applicant’s Supplementary SFIC dated 17 December 2021 (A1(b));
(c)Applicant’s signed statutory declaration filed on 19 December 2021 (A2);
(d)Letter from ECU Criminal Justice Review Project dated 1 December 2021 (A3);
(e)A 230-page set of documents provided under s 501G of the Migration Act numbered G1 to G46 (R1);[26]
(f)Respondent’s Supplementary Documents numbered S1 to S20 (R2); and
(g)Respondent’s SFIC dated 14 December 2021 (R3).
[26]The Tribunal notes that the Applicant’s letter of instruction to Assoc. Prof. Freeman dated 1 June 2020 was tendered at the hearing and forms part of Assoc Prof. Freeman’s report dated 21 June 2020, which appears at R1, G40.
The Tribunal has taken into account the letters of support and statutory declarations of the Applicant’s family and friends, previously provided and contained within R1.[27]
[27]See R1, G31–G33, G42, G43 (inclusive).
Following the hearing, and at the Tribunal’s request, the parties filed additional submissions on the effect of HZCP.[28]
[28]These are addressed at paras [81]–[85] below.
In these proceedings, the Applicant gave oral evidence and canvassed numerous arguments relating to various matters for which the Tribunal did not have any documentary evidence before it, other than:
(a)written statements of the personal views and beliefs held by the Applicant, without independent corroborating evidence; and/or
(b)evidence presented or an argument put, for the first time, at hearing.[29]
[29]The Tribunal notes the 2 day rule in this regard. See s500(6H) Migration Act.
The Tribunal emphasises, and importantly in its view, that while it has reviewed all of the evidence and submissions presented, for present purposes, it takes into account:
(a)materials and evidence to the extent they are relevant to the issues for review, noting the limitations as to the weight to be given to this evidence where it is derived solely from the Applicant’s personal views and beliefs;[30] and
(b)submissions to the extent that they are relevant to the issues for review and are based on evidence before it.
LEGISLATIVE FRAMEWORK
Migration Act
[30]For example, the Applicant’s views and beliefs in relation to his intention to have direct contact with his minor son in future: Transcript, p 25 [35], [40].
Mandatory cancellation of a visa under s 501(3A) of the Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); or
…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of
12 months or more; or …
(Original emphasis.)
Power to revoke cancellation decision
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
Direction No. 90
Pursuant to s 499(1) of the Migration Act, the Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers. Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No. 90 under s 499 of the Migration Act. Direction No. 90 commenced operation on 15 April 2021, replacing the previous Direction No. 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No. 79), which was revoked on the same date.[31]
[31]Direction No. 90 paras 2–3.
The Tribunal notes that the Reviewable Decision was made by the delegate applying Direction No. 90, which was the Ministerial direction in force at the time that the decision was made. As there are no transitional provisions in Direction No. 90, all decisions made on or after 15 April 2021 must apply that direction, as the Tribunal must apply law and policy in place at the time that it makes a decision.[32]
[32]See the discussion of the application of previous directions made under Jagroop and Minister for Immigration and Border Protection [2015] AATA 751 upheld on appeal in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.
The purpose of Direction No. 90 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[33] In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must have regard to the primary and other considerations set out in Direction No. 90.[34]
[33]Direction No. 90 para 5.1(4).
[34]Direction No. 90 para 6.
Paragraph 5.1 of Direction No. 90 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No. 90 sets out ‘[p]rinciples’ which must be taken into account by decision makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on
non-citizens in the expectation that they are, and have been, law-abiding,
will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] 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 any 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 in relation to a non-citizen who has 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 measureable [sic] risk of causing physical harm to the Australian community.

Informed by the principles set out in para 5.2 of Direction No. 90, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[35]
[35]Direction No. 90 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No. 90, which includes the Tribunal.
The primary considerations in Direction No. 90, in deciding whether to revoke the refusal or cancellation of a non-citizen’s visa, are:[36]
(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; and
(4) expectations of the Australian community.
[36]Direction No. 90 para 8.
Paragraph 9 of Direction No. 90 sets out other considerations that the decision maker must take into account. It relevantly provides that:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in para 7, ‘[t]aking the relevant considerations into account’, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
EVIDENCE
The Applicant
In his statements,[37] and orally at hearing, the Applicant gave the following evidence:
[37]A2. See also R1, G23, G25, G20 to G30 (inclusive) and G44.
(a)The Visa was cancelled due to the fact that when he returned from his holiday in Thailand he was consequently and apparently caught with drugs.[38]
[38]Transcript p 26 [30]-[35].
(b)He still pleads his innocence and will fight for his innocence until the end to clear his name.[39] He suspects his co-offender inserted the drugs in the welder while he was completing the warranty papers.[40]
[39]Transcript p 28 [20].
[40]A2 [26]; R1, G40, p161 [4.1].
(c)He has severe Type 1 diabetes[41], for which his family had to supply a $9000 insulin pump to him in prison.[42]
[41]A2 [8].
[42]Transcript p 28 [25].
(d)He feels he is now a better judge of character, does not associate with a lot of people and keeps mostly to him himself in prison, reading and working in his job.[43]
[43]Transcript p 29 [5].
(e)He has utilised counselling services in prison[44] for help with his anxiety and PTSD.[45] The stress of this impacts his diabetes and in turn his anxiety.[46]
(f)His PTSD was brought about by his being assaulted in his home by his co-offender in 2014.[47] He understands that Rockingham Hospital, where was treated afterwards, ought to have advised the police and did not.[48]
(g)He is remorseful for the people that he associated with at the time of the offending, including his co-offender,[49] which put him in the wrong place at the wrong time.[50]
He is also remorseful for being caught with the drugs because he knows what drugs do to society.[51]
(h)He has a fantastic relationship with his daughter,[52] who visits him in prison[53] and speaks with him on the phone.[54] He said his daughter wants to live with him if he is released[55] and it would be hard for her if he lived in New Zealand.[56]
(i)He has not seen his son since his son was 7 years old, and has not been permitted to maintain contact[57] due to issues with his son’s mother.[58] He sends his son birthday cards with money in them, through his own mother and receives nothing back.[59] He hopes and prays to have a relationship with his son, which he will pursue through the family courts.[60]
(j)His parents, cousins and extended family,[61] including his 9-year-old half-sister and 5-year-old half-brother, all reside in Australia.[62] He has a good relationship with all of them.[63]
(k)His mother requires hip and spinal surgery, and he intends to care for her when this takes place.[64]
(l)If released, he would straight away return to his boat and car detailing work.[65] He would also like to set up a diabetic care facility for the underprivileged.[66]
(m)He has two close friends in Canada.[67]
[44]A2 [16(c)].
[45]Transcript p 29 [15].
[46]Transcript p 29 [35].
[47]Transcript p 29 [20-[30]. The Tribunal notes there is no police record of such an incident.
[48]Transcript p 29 [20]-[30].
[49]A1a [21]; A2 [29]; R1, G40, p 161 [4.2].
[50]Transcript p 30 [5].
[51]Transcript p 32 [45].
[52]A2, [11a].
[53]A1a [26]; A2 [34]. The prison visits by the Applicant’s parents and his daughter are detailed in the visitor logs at R1, G39.
[54]Transcript p 30 [25]. See R1, G35.
[55]Transcript p 30 [40].
[56]Transcript p 32 [5].
[57]A2 [11b].
[58]Transcript p 30 [35].
[59]Transcript p 30 [35].
[60]Transcript p 30 [40]-[45].
[61]R1, G23, p 99.
[62]Transcript p 31 [5]-[10].
[63]Transcript p 31 [15]-[45]. See A2 [10].
[64]Transcript p 32 [5]-[10].
[65]Transcript p 32 [15]-[20].
[66]Transcript p 32 [25].
[67]A2 [12].
During cross-examination, the Applicant said that he did not agree with the facts recorded by police that during the internal search of the welder,[68] as follows:[69]
[68]See R2, S2, p3.
[69]Transcript p 37 [10]-[25].
MS STRUGNELL:     During the internal search of the welder you said, 'That's not meant to be there, I know what that is'?---
APPLICANT:              Yes.
MS STRUGNELL:     And as the customs officer was making a small incision, revealing a white crystallised substance they asked, 'What do you think it is?' And you said, 'It's rock.' And when they asked what you meant by rock you said meth?---
APPLICANT:              Yes.
MS STRUGNELL:     Do you agree with those facts?---
APPLICANT:              No, that's not what I said.
MS STRUGNELL:     That's not what you said?---
APPLICANT:              No.
MS STRUGNELL:     Okay. What do you think you said?---
APPLICANT:              I said, 'That's not supposed to be there, I don't know what it is.'
As to the Express Mail Services (EMS) parcel intercepted on 10 December 2012 with the name and address associated to the Applicant,[70] and the remark by the sentencing judge that this evidence tended to suggest the Applicant had some knowledge and involvement in that package, the Applicant said he did not know what that package was.[71]
[70]See sentencing remarks at R1, G8, p 39 (also at para [75] below).
[71]Transcript p 37 [40]-[45] and p 38 [5]-[28].
When asked, the Applicant said his co-offender was a business associate on and off for the last 6 years, with whom he had gone on to form a friendship.[72]
[72]Transcript [30]-[35].
Regarding the Respondent having noted the Applicant has not attended any rehabilitation courses:[73]
MS STRUGNELL: Given you haven't actually attended any rehabilitation courses, I'm a little concerned that maybe you would not be able - and you didn't identify that this co-offender was a member of a motorcycle gang[74] or had an intention of importing drugs - how would you make sure that you don't have any negative peer associations, if you were released?
APPLICANT: Through the prison counselling service I have received a number of books on self-help, which I have consequently read. And still practice reading those kind of books.
[73]Transcript p 39 [25]-[35].
[74]The co-offender has been referenced as being a member of an outlaw motorcycle gang, see Transcript p 39; G27 p 127.
Noting the Applicant completed just 8 of the 30 sessions in the Think First program then chose not to complete this program,[75] the Applicant said his decision to stop was based on legal advice[76] that it was an admission of guilt if he continued with the program.[77]
[75]See Non-Completion Report: R2, S7, p27.
[76]See R1, G11, p58.
[77]Transcript p 40 [15]. See also R1, G40, p161 [4.4].
As to the Applicant having been offered the Think First program on a number of occasions following the High Court appeal ceasing to go ahead, the Applicant said he chose not to re-enter the program.[78] The Applicant gave the reason that he ‘knows [he is] innocent’ and did not believe that the matters covered in the program, such as social interaction, negotiation, conflict resolution or perspective taking would be relevant to his identified issues of being a bad judge of character or negative peer association.[79]
[78]Transcript p 40 [25].
[79]Transcript, p 40 [30]-[45]. See also R3, S7, p 29.
The Applicant said he was advised that he could use his everyday life skills in this regard, but was then “marked incorrectly on everything.”[80] The Applicant gave evidence that he does not consider himself to be an individual with any problem-solving deficits.[81]
[80]Transcript, p 40 [40]-[45].
[81]R3, S7, p 29.
The Applicant stated that he did not believe the emotional and anger management components of the Think First program would apply to him[82], despite his aggressive behaviour towards medical staff in prison on a number of occasions[83] because:[84]
‘Basically they were not medical practitioners, as I say, and not diabetic trained’.
[82]Transcript p 41 [15].
[83]Transcript p 41 [10]. See R2, S9, p57.
[84]Transcript p 41 [20].
The Applicant stated that he also disagreed with the records in the prison incident reports that he had been observed tampering with his insulin pump, refusing insulin and the suggestion that he was deliberately jeopardising his health.[85]
[85]Transcript p 41 [25]-[40]. See R2, S9.
The Respondent put the following concern to the Applicant:[86]
MS STRUGNELL: So, the concern that the Minister has is you continue to state your innocence, you deny any role in the offending despite having been found guilty by a jury of 12 people who believed beyond reasonable doubt that you knew that the drugs were in the welder, you have said today that your lawyers were not helpful and didn't assist you, you've complained about medical staff as well - the concern is it appears you don't have any insight into your offending - that you're attempting to minimise your offending to improve your position. Is there something you'd like to say about that?---
APPLICANT: Minimising when I didn't do it? How can I minimise something when I didn't do it?
[86]Transcript p 42 [5]-[10].
When asked, the Applicant said that he did not accept it was possible for him, now, to meet someone (not necessarily in a work context) and misjudge them.[87]
[87]Transcript p 43 [35].
As to the Applicant’s evidence that:
(a)the police “did not want to know” about his having been assaulted by his co-accused in 2014;
(b)the hospital’s failure to report it to the police; and
(c)the lack of police record regarding this matter, [88]
the Applicant said he had called the police when he left hospital, two weeks after the incident.[89]
[88]Transcript p 43 [40]-[45]. See para [42(f)] above.
[89]Transcript p 44 [5]-[20].
The Applicant said that, if released, he is not concerned about being assaulted again by this person, and has the following plan in place::[90]
APPLICANT:              He is the risk to society, not me…
MS STRUGNELL      …[W]hat will you do - what steps will you take to ensure that he does not associate with you in a negative way?---
APPLICANT:              He is an AFP informant who is now in witness protection. And I have already contacted the police through my father, and I can have an emergency button put in my house.
[90]Transcript p [25]-[45].
As to the Applicant’s plan to care for his mother following her impending hip and spinal surgeries, the Applicant said he plans to take his mother to New South Wales, where his mother will stay on and live with her sister.[91] The Applicant said his daughter would like to come with them to New South Wales.[92]
[91]Transcript p 45 [10]-[20]. In his statement, the Applicant says if he were allowed to remain in Australia, he intends on residing with his parents in Western Australia: A2 [33].
[92]Transcript p 45 [45].
When asked about his son, the Applicant said his son has never made any contact with him because his son’s mother would not allow it.[93] The Applicant accepts he has not had a relationship with his son since his son was seven years old.[94]
[93]Transcript p 45 [30].
[94]Transcript p 45 [35].
As to the Applicant’s plans to return to his boat and car detailing business if released and after having been in prison, the Applicant he did not know if that plan was feasible, he would need to get new customers, including in New South Wales.[95] The Applicant said he could also re-establish his business in New Zealand and while there would be the additional difficulty with meeting the regulatory requirements, this was probably not insurmountable.[96] The Applicant stated his business would stand a better chance in Canada.[97] The Applicant added:[98]
I think my hardest challenge is going to be the healthcare - finding all the help, and especially with my diabetes and the diabetic care and my PTSD. I think that's going to be a great hurdle for me. Having no family support and no support down there, who do I go to for help except for a healthcare system I don't know.
[95]Transcript p 46 [15]-[20].
[96]Transcript p 46 [25]-[30].
[97]Transcript p 46 [30].
[98]Transcript p 47 [10]-[15].
Associate Professor Freeman, Consultant Psychologist
In his report,[99] and orally at hearing, Assoc. Prof. Freeman gave the following evidence:
[99]R1, G40.
(a)His suggestion in his report that the Applicant may have a PTSD[100] is a provisional diagnosis, meaning that it’ an early assessment which ideally would need to be confirmed through multiple assessments, or with a treating psychologist.
[100]R1, G40, p 163 [10.2].
(b)As to his opinion that the Applicant was at a low risk of reoffending, he said that it is not conceptually possible for there to be no risk.[101]
[101]Transcript p 50 [35]-[40].
(c)The Applicant has ongoing mental health treatment needs which will probably require ongoing supervision by a medical practitioner where he could receive referrals onto allied mental health professionals such as psychologists.[102]
[102]Transcript p 51 [35].
(d)The Applicant has protective factors which can be considered to reduce the risk of reoffending, such as:
(i)his prosocial goals;
(ii)his treatment needs, which are not extensive;
(iii)he has relatively stable relationships;
(iv)he does not appear to have a personality disorder;[103]
[103]Transcript p 51 [35]-[45];
(v)he has a capacity to enter the workforce;
(vi)his lack of substance abuse vulnerabilities;
(vii)his lack of a past broad group of negative peer association; and
(viii)he has accommodation.[104]
(e)Regarding the Applicant’s continued stance of innocence[105], this has not traditionally been linked with recidivism, although this relies heavily on sex offending examples.[106]
(f)There are no well-validated actuarial risk assessment scales developed specifically to predict recidivism for trafficking-based offences.[107] However, Acting Prof. Freeman considered the assessment scales he adopted assess many of the core constructs of criminality, as well as factors related to recidivism.[108]
(g)The Applicant continues to be reluctant to accept responsibility for the offence and did not demonstrate remorse, other than for associating with his co-offender.[109]
(h)He is not in a position to commence on the Applicant’s reasoning behind his offending, because he only has the Applicant’s version of events.[110] Nevertheless, the Applicant presented as someone who was particularly deterred from reoffending, who really disliked being incarcerated and was very worried about the possibility of having his visa permanently cancelled.[111]
(i)The Applicant would certainly experience some hardship if he removed to New Zealand or Canada,[112] as PTSD reduces a person’s ability to assimilate and interact with people and handle stress.[113] If removed, the Applicant will struggle more compared to the average person.[114]
[104]Transcript p 54 [25]-[35].
[105]R1, G40, p 160 [3.1].
[106]Transcript p 52 [5]; R1, G40, p 166 [13.4].
[107]R1, G40, p 164 [11.1].
[108]R1, G40, p 164 [11.1].
[109]R1, G40, p 164 [11.4].
[110]Transcript p 53 [10-[25].
[111]Transcript p 53 [30]-[40].
[112]Transcript p 54 [45].
[113]Transcript p 55 [5]-[10].
[114]Transcript p 55 [20].
During cross-examination, Assoc. Prof. Freeman stated he had no clinical relationship with the Applicant beyond his standalone telephone assessment of him on 19 June 2020,[115] which went for an hour and a half.[116] He was not the Applicant’s treating psychologist.[117] He has not spoken with the Applicant since this assessment.[118]
[115]Transcript p 57 [45].
[116]Transcript p 58 [10].
[117]Transcript p 57 [45].
[118]Transcript p 61 [5].
The Respondent asked Assoc. Prof. Freeman a number of questions regarding his identified protective factors:[119]
[119]Transcript p 59 [35]-[45], p 60 [5]-[10]; See above para 57(e).
MS STRUGNELL:     …[A]s you said there is no offending history. You've also talked about the protective factors if he was released from prison and that his goals are clear and pro-social and that he has family support. But [the Applicant] had all these protective factors before the offending. And you've also mentioned in your report …
At 11.4 you had talked about - so, 'the offence suggests some level of, albeit fleeting, poor behavioural controls or impulsivity'?---
WITNESS:                 Yes. Correct, yes, go on.
MS STRUGNELL:     What do you say about it in the sense of he had all these protective factors previously, but then there's this poor behavioural control of impulsivity that may or may not have led to an offence?---
WITNESS:Yes.
MS STRUGNELL:     Has he addressed that?---
WITNESS:Look, it's a very good question. And this is where Professor Freeman is covering himself, in the sense the client is maintaining a stance of innocence, however he's guilty, he's been proven guilty, and so clear it would - there would be some suggestion that maybe he engaged in impulsivity or poor behavioural control in that moment. It's very difficult for me to say. I wasn't there and I can't read people's minds.
All I can focus on - - -… - is the value of specific deterrence. He presents as somebody who would be very vigilant of those high risk situations again. I do accept what you're saying. It's a very good question…

As to how to reconcile the Applicant having been refused parole on two occasions[120] with Assoc. Prof. Freeman’s opinion that the Applicant presents a low risk of reoffending:[121]
MS STRUGNELL: One thing that I'm struggling to reconcile - so you conducted this assessment 18 months ago, and I can see from the letter of instruction that you did have before you a (indistinct) letter - letter from the Attorney General regarding an application for parole. But since you spoke to the applicant about 18 months ago, he's been refused parole again on, I believe, two occasions. So I'm struggling to reconcile what you say about his low risk, he's got these protective factors, he's specifically deterred, against the context of the parole board clearly disagrees because they've refused him parole on two more occasions. Is there anything you can say about that or is that (indistinct) - - -?---
WITNESS:That's a very good point and I should have highlighted that to the tribunal. So, yes, I spoke with him on 19 June. I then wrote the report on 21 June. I have not spoken to him, and I am not aware of anything that's happened since June 2020 to now. So I was only recently informed that I would be providing some evidence and assisting the tribunal. So that is a limitation of this report. That's a limitation of the evidence which I am giving to the tribunal today.
(Emphasis added).
[120] G40, 166 [13.4]; R3, S11 p 77.
[121] Transcript p 60 [35]-[45].
Mr Kelvin Climo
In his statement,[122] and orally at hearing, the Applicant’s father Mr Kelvin Climo (Kelvin) gave the following evidence:
(a)The Applicant was set up by the Applicant’s friend and “there’s no chance of his ever possibly having done it.”[123]
(b)The Applicant has a very good relationship with his daughter Eliza.[124]
(c)The Applicant has one of the extreme forms of type 1 diabetes and can only survive by using an insulin pump.[125]
(d)As to the reference in his statement that the Applicant has been studying in prison and doing very well,[126] the Applicant told Kelvin that he had done everything in the system that he could do.[127]
^(e)The Applicant needs family support because if he is ever sick or “has a hypo,” it is his family who will support him and take him to hospital.[128]
(f)Kelvin bought the Applicant the insulin pump he uses in prison because the prison refused (to provide one).[129]
(g)Kelvin has a brother in New Zealand.[130]
(h)If the Applicant were removed to New Zealand, Kelvin would be unable to visit him because he would be unable to afford it.[131]
[122]R1, G31.
[123]Transcript, p 63 [35].
[124]Transcript, p 64 [45].
[125]R1, G31; Transcript, p 65 [5]-[10].
[126]Transcript, p 66 [45]. See R1, G31, p 133.
[127]Transcript, p 67 [5]-[10].
[128]Transcript, p 68 [35]-[40].
[129]Transcript, p 69 [15]-[20].
[130]Transcript, p 69 [30].
[131]Transcript, p 69 [35].
Ms Eliza Climo
In her statement,[132] and orally at hearing, the Applicant’s daughter Ms Eliza Climo (Eliza) gave the following evidence:
(a)She believes the Applicant was wrongly convicted and that he was set up.[133]
(b)She visits her father in prison as often as she can and always tries to make the time to see him.[134]
(c)She would rather the Applicant stay in Perth as the majority of their family are here and they can support him with his diabetic health.[135]
(d)Her family can’t really afford to visit the Applicant if her were in New Zealand.[136]
(e)If the Applicant were permitted to remain in Australia, Eliza would live between both parents equally.[137]
[132]R1, G33.
[133]Transcript, p 72 [10]-[15].
[134]Transcript, p 72 [25]-[30].
[135]Transcript, p 73 [5].
[136]R1, G33; Transcript, p73 [10].
[137]Transcript, p 73 [30]-[40].
Ms Jennifer Climo
In her statement,[138] and orally at hearing, the Ms Jennifer Climo (Jennifer) gave the following evidence:
[138]R1, G32.
(a)Jennifer believes the Applicant was set up by an acquaintance.[139]
(b)She visits the Applicant in prison every other week and speaks to him on the phone when possible.[140]
(c)The Applicant has PTSD and, if deported, Jennifer does not think he will survive.[141]
(d)She believes if the Applicant lived in New Zealand, he won’t have the necessary support for his type 1 diabetes.[142]
(e)Jennifer has had two hip surgeries and has been told she needs to have back surgery.[143] She would book in the back surgery if she had someone there to help her.[144] She is waiting for the Applicant to be released before she agrees to have the surgery.[145]
(f)If the Applicant could remain in Australia, he could live with her and assist with her recovery from surgery.[146]
(g)Jennifer has a sister in Sydney and a brother in Brisbane and hasn’t seen either of them in over 25 years.[147]
(h)She has no plans to live anywhere other than in her own home,[148] including in eastern Australia.[149]
(i)If the Applicant were removed to New Zealand, she would not go and visit him as she couldn’t afford to.[150] She would not be able to cope, and neither would their family.[151]
[139]Transcript, p 76 [20].
[140]Transcript, p 76 [25]-[35]. See R1, G35.
[141]Transcript, p 77 [10]-[15].
[142]Transcript, p 77 [30]-[35].
[143]Transcript, p 77 [40]-[45].
[144]Transcript, p 78 [40].
[145]R1, G32.
[146]R1, G32; Transcript, p 78 [5], p 79 [10]-[20].
[147]Transcript, p 79 [30].
[148]Transcript, p 79 [5]-[20].
[149]Transcript p 79 [35]-[40].
[150]Transcript, p 79 [45].
[151]R1, G33.
DISCRETION TO REFUSE TO GRANT THE VISA
Having determined the Applicant does not pass the “character test,” the Tribunal must determine whether the discretion should be exercised to revoke the Cancellation Decision.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Applicant does not pass the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 90, there is another reason why the Cancellation Decision should be revoked.[152]
[152]Pursuant to s 501CA(4)(b)(ii) of the Migration Act.
The Applicant contends that the only consideration that weighs against him is the fourth primary consideration, expectations of the Australian community,[153] and that all the remaining considerations in his favour significantly outweigh community expectations in any event.[154]
[153]Para 8.4 of Direction No. 90. See Transcript, p 23 [15]-[20].
[154]Transcript p 23 [15]-[20].
The Respondent is of the view, however, that:
(a)The primary considerations of protection of the Australian community[155] and expectations of the Australian community[156] should be afforded significant weight against revocation;
(b)Family violence[157] is neutral because it doesn't arise;
(c)The best interests of minor children[158] are minimally in favour of revocation, but should be given limited or neutral weight;[159] and
(d)In terms of other considerations,[160] the impediments and the strength, nature and duration of ties again weigh in favour of revocation but only to a minimal degree. The other considerations in the Applicant’s favour should not outweigh the primary considerations that weigh against revocation.[161]
[155]Para 8.1 of Direction No. 90.
[156]Para 8.4 of Direction No. 90.
[157]Para 8.2 of Direction No. 90.
[158]Para 8.3 of Direction No. 90.
[159]R3 [2].
[160]Para 9 of Direction No. 90.
[161]R3 [2].
The Tribunal notes at the outset:
(a)While both parties agree that:
(i)The nature of the Applicant’s offending[162] was serious and that this weighs against revocation, the Respondent disagrees with the Applicant’s view that his low risk of reoffending outweighs the serious nature of his offending (such that this consideration lies in the Applicant’s favour overall) and therefore that it weighs in favour of revoking the visa cancellation.
(ii)The expectations of the Australian community weigh against revocation, the parties disagree about the weight that should be given to it, particularly given the Applicant’s position that the considerations in his favour serve to outweigh this primary consideration.
(b)As to whether the best interests of the Applicant’s minor children, and other affected minor children weigh in favour of revocation, the Respondent submits the Tribunal should give this factor neutral weight. However, the Applicant maintains that consideration weighs in his favour.
First primary consideration: Protection of the Australian community (paragraph 8.1 of Direction No. 90)
[162]Being the offending for which the Applicant was convicted, given the Applicant’s stance that this does not represent his own conduct to the extent he was involved in the offence. Given HZCP, the Tribunal cannot go behind the factual findings of the sentencing judge and proceeds accordingly. This is addressed further at [81].
Paragraph 8.1(1) of Direction No. 90 provides that:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No. 90 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1 of Direction No. 90)
Paragraph 8.1.1(1) of Direction No. 90 provides:[163]
[163]See also Direction No. 90 para 8.1(2)(a).
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)     crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)     acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)     crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)     any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)    where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(Emphasis added).
In determining whether the Applicant’s conduct should be viewed as serious, the Tribunal notes the facts and circumstances of the Applicant’s offending and the conviction imposed.
The Applicant’s offending conduct is briefly detailed above.[164] The facts of the Applicant’s offending are set out in the sentencing remarks of Levy DCJ on 20 November 2015 as follows:[165]
[164]See [7] above.
[165]R2, G8, p 38-40.
If I turn firstly to you, Mr Climo. You were convicted on count 1. The offence of importing a marketable quantity was committed between 25 April 2013 and 18 May 2013. You transported the welder box which contained the welder which had a package within it which had four layers of wrapping around a white substance weighing 192.8 grams. The white substance when analysed revealed it was methamphetamine at a purity of 74.3 per cent which equated to a pure net weight of methamphetamine of 143.2 grams.
You are fortunate that you were intercepted at Perth Airport and not in Thailand, where you may well have faced the death penalty. The welder box contained the welder, which I’ve already said contained the methylamphetamine.
In relation to your role, the jury were clearly satisfied beyond reasonable doubt that you knew that the welder contained the drugs. Your defence was that you had no knowledge of the existence of the drugs and the welder. Your defence was that somebody other than you had placed the drugs in the welder.
On your evidence it left open three possibilities:
(a) Mr Edwards in the store whilst you were distracted doing the warranty papers;
(b) somebody else in the store or the third really that was not raised by you and that is that the drugs were already in the welder and somehow had accidentally fallen into your possession.
Given your evidence at trial and that of Mr Edwards, it is most likely that either you or another person with your knowledge placed the drugs in the welder after you left the store. However the drugs got in the welder, the jury found that you knew they were there and imported the drugs intentionally.
As to the other evidence of you taking cash to Thailand, it may well be the case that you and/or your father were investing in a bar in Thailand. I make no findings one way or the other about that. In the end, the fact that the jury acquitted Mr Edwards would tend to support that view. However, it is not necessary to make any findings on that for the purposes of sentencing.
I turn to the EMS parcel intercepted on 10 December 2012 with the name and address associated with you. That evidence tends to suggest that you had some knowledge and involvement in that package. The relevance of this parcel and your involvement – potential involvement – in its sending suggests that you were testing the waters to see you could achieve an importation by some means. Ultimately it is not necessary for the purposes of sentencing to make any conclusive finding on that package.
Given your evidence that you are not a drug user, unlike Mr Carter, I can only conclude that you entered into the offence for purely commercial purposes.
I note that you still maintain your innocence. Whilst you could not and will not be punished for your continued for your continued denial of the offence, you cannot receive any leniency for remorse….
(Emphasis added).
The Applicant contended as follows in relation to the nature and seriousness of his offending conduct:[166]
(a)He acknowledges his offending is serious in nature.[167]
(b)However, at hearing the Applicant submitted that while he accepts the offence for which he was convicted is serious,[168] he considers that his role in that offence, as in the conduct as he sees it, is not serious.[169]
(c)While he maintains his innocence, it is clear he “remorseful and insightful” for his association with the co-offender[170] and his bad judge of character,[171] which was acknowledged by Assoc. Prof. Freeman.[172]
(d)While he accepts the sentencing judge’s remarks in determining his sentence, he submits that the determination of the nature and seriousness of the Applicant’s conduct is not strictly and inflexibly determined on the remarks of the sentencing judge and other relevant and contemporaneous ought to be afforded sufficient attention.[173]
(e)This includes the Applicant’s vulnerability at the time of offending, namely his having associated with negative peers[174], as highlighted by Assoc. Prof. Freeman.[175] That is, the Applicant “became involved” in the offending “because of his association with a bad co-offender.”[176]
(f)The Applicant continues with his efforts to rehabilitate and to sever any negative influences that may relate to his negative peer associations.[177]
(g)He has not reoffended since being formally warned about the consequences of doing so.[178]
(h)The “several[179] dynamic factors”[180] that are contributable to his offending “have now passed”[181] and can be sufficiently set aside by reason of the Applicant’s continuous efforts to have insight with his regard to previous negative associations.[182]
[166]
[167]A1a [37], [40].
[168]Transcript, p 8 [30]-[35], p 9 [30]-[40].
[169]Transcript, p 9 [45].
[170]Transcript, p 10 [25]-[30].
[171]A1a [34].
[172]A1a [34].
[173]A1a [36].
[174]A1a [38].
[175]The Tribunal is unable to find a specific reference to this in Assoc. Prof. Freeman’s report, other than the Applicant’s remorse for “hanging out with the wrong people” (R1, G40 p 161).
[176]A1a [39].
[177]A1a [37].
[178]A1a [40].
[179]The Tribunal understands the only factor the Applicant has submitted to be his negative peer association. While the Applicant made written submission regarding his vulnerability due to his PTSD and PDD having been a factor, at hearing he accepted that given the assault triggering these conditions occurred after the offending conduct, this did not logically follow.
[180]A1a [39].
[181]A1a [39].
[182]A1a [37].
The Applicant submits that while his past offending behaviour is serious for the purposes of paragraph 8.1.1 of Direction No. 90, “the factors[183] surrounding the offending itself” lead to a finding that this factor weighs in his favour.[184]
[183]See [74(h)] above.
[184]A1a [40].
The Respondent contended as follows in relation to the nature and seriousness of his offending conduct:[185]
[185]R3 [23]-[26].
(a)It accepts that the Applicant has no other criminal convictions.[186]
(b)The Applicant committed serious drug offences.[187] As acknowledged by the Delegate, such offending has:[188]
‘the potential for serious harm that the importation and sale of drugs can cause to members of the community through drug use that in turn can result in the commission of other serious crimes.’
(c)The Tribunal has recognised the seriousness of crimes associated with drug supply, and the significant harm it inflicts on the Australian community.[189]
(d)The seriousness of the Applicant's offending is reflected in the sentencing remarks and the prison sentence imposed[190]. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Where a court has sentenced an offender to a term of custodial imprisonment, this must be viewed as a reflection of the objective seriousness of the offences involved.[191]
(e)While the Applicant maintains his innocence, the Tribunal cannot go behind the Applicant's convictions. Further, the Applicant's convictions and sentences are probative of the factual matters upon which they are necessarily based.
[186]R3 [26].
[187]R3 [23].
[188]R3 [24], citing R1, G5, p18 [27].
[189]R3 [24], citing Paeu and Minister for Immigration and Citizenship [2011] AATA 792 at [40] per Senior Member Taylor; SCJD and Minister for Home Affairs [2018] AATA 4020 (SCJD) at [81]-[83].
[190]See para 8.1.1(1)(c) of Direction No. 90.
[191]R3 [25], citing R1, G8.
[192]R3 [25], citing HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121; [2019] FCAFC 202 (HZCP) at [77] per McKerracher J and at [189] per Colvin J; Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 at [41]–[44] per Branson J.
The Applicant has not discharged the heavy onus to challenge those facts.[192]

At hearing, the Respondent submitted further that:
(a)The applicant's PTSD and PDD are conditions that arose after the offending.[193]
The Applicant appears to place great weight on the fact that he was vulnerable at the time of offending, as a way of minimising that offending. The Applicant can't be considered vulnerable at the time of offending in circumstances where those conditions arose later.[194]
(b)The Applicant’s maintenance of his innocence is a difficult issue: It displays little insight into the offending, insofar as the Applicant has refused certain rehabilitation courses that would address factors such as his negative peer associations and some of the issues with anger and incidents in prison, notwithstanding that he maintains his innocence with respect to the offence.[195]
[193]The Applicant conceded this point at hearing. See [74] above.
[194]Transcript, p 23 [30]-[40]. The Applicant conceded this point at hearing, but maintained the argument in reference to the Applicant’s vulnerability that arose from his past negative peer association. See [79] above.
[195]Transcript, p 23 [40]-[45].
The Respondent submitted that therefore, the nature and seriousness of the Applicant’s offending weighs heavily against revocation.[196]
The parties’ submissions on HZCP v Minister for Immigration and Border Protection
[196]R3 [22]; Transcript, p 23 [30].
At hearing, there was some dispute between the parties as to the effect of the decision in HZCP, in the context of whether the Tribunal can go behind the Applicant's convictions to consider the Applicant’s claimed factual matters relating to his offending conduct.
The Tribunal sought the parties’ written submissions on the matter.
The Applicant’s view is that:[197]
(a)It concedes that where a factual finding underpins a conviction or sentence, the Tribunal is not, without extreme caution or the heavy onus having been discharged, permitted to make a contrary finding of fact.
(b)However, as highlighted by Derrington J (the dissenting Judge in that decision), there is no basis in the text of the Administrative Appeals Tribunal Act 1975 (Cth) for a strict rule to prevent the Tribunal considering facts underlying a conviction.
(c)The Tribunal may therefore consider the Applicant’s position in respect to his claimed innocence, that he entered a plea of not guilty and his intention to clear his name as a matter of context in respect to his risk of recidivism (namely, a continued stance of innocence not having been found predictive of recidivism),[198] rather than a contrary finding of the criminal court proceeding.
[197]Applicant’s post-hearing submissions filed on 24 December 2021.
[198]R1, G40, p 166 [13.4]. However, see [57(e)] and [57(f)] for further context.
In response, the Respondent submitted that:[199]
(a)At hearing, it had understood the Applicant to contend (in response to an assertion by the Tribunal that it could not go behind the factual findings in the criminal matter), that the Tribunal can proceed with caution and assess the matter, relying on the reasons of Derrington J in HZCP.
(b)The reasons of the majority of the Full Court in HZCP stand for the proposition that the Tribunal cannot go behind the facts.[200]
(c)To the extent it understood the Applicant to be relying on the minority dissenting opinion in HZCP, this is not binding[201] and therefore not an authority for the principles the Applicant cited.
(d)Therefore, the Applicant’s reliance on the decision of Derrington J in HZCP is misplaced.
[199]Respondent’s post-hearing submissions filed on 24 December 2021.
[200]Citing HZCP at [63], [77] and [195] and a number of additional cases that uphold the correctness of the majority in HZCP.
[201]The Respondent cited a number of authorities for the proposition that it is not proper to seek to extract a binding authority from an opinion expressed in a dissenting judgment and literature regarding why dissenting judgment cannot form binding authority.
Having considered the parties’ written submissions, the Tribunal is satisfied the Applicant accepts that the Tribunal cannot go behind the factual findings in the criminal proceedings that led to his conviction and sentencing.
However, the Tribunal is of the view that, for present purposes, it is sufficient to generally acknowledge the Applicant’s position regarding his maintained innocence as a demonstrative example of his limited insight into his offending.
To the extent that this may relate to his risk of reoffending,[202] the Tribunal notes his refusal to complete the rehabilitation courses offered to him and his belief that he would derive no benefit from these courses given he has no treatment needs (such as negative peer associations) in this regard, these needs having been met by other measures such as reading self-help books.
[202]Addressed in detail at paras [101]-[105] below.
The first primary consideration, Protection of the Australian community from criminal or other serious conduct,[203] requires the decision-maker to look at “the non-citizen’s criminal or other conduct to date” (emphasis added). [204] For completeness, the Tribunal notes there is no “other conduct” to date that falls for consideration in this matter.
[203]Para 8(1) of Direction No. 90.
[204]Direction No. 90, para 8.1.1(1).
In assessing the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction No. 90:
(a)Paragraph 8.1.1(1)(a) – the parties agree at the Tribunal finds that the type of crime committed by the Applicant is to be viewed seriously.[205]
(b)Paragraphs 8.1.1(1)(b) and 8.1.1(1)(c) – The conduct relating to the Applicant’s offence for which he ultimately was sentenced to 7 years imprisonment:[206]
(i)includes conduct that formed the basis of the finding that the Applicant did not pass the character test; and
(ii)is, in the Tribunal’s view probative of the seriousness of that offending conduct,
(c)Paragraph 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f) and 8.1.1(1)(g) - the Tribunal has considered these sub-paras of Direction No. 90 and finds that the Applicant’s conduct and the present factual matrix does not come within their scope.
[205] See para 74(a), 74(b) and 74(c) above.
[206]See paras [6]-[7].
No arguments were put by the parties in relation to these matters.
In summary, the Applicant has an offending history consisting of a drug related offence. However, the nature of this offence, irrespective of the fact it constitutes the entirety of the Applicant’s offending history causes the Tribunal considerable concern.
The Tribunal emphasises the significant and widespread nature of the harm that drug crimes inflict on the Australian community.[207] For example, in SCJD, the Tribunal found:
81.The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
82.In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
83.There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.
(Emphasis added).
[207] See, for example, SCJD at para [78] above.
The overall seriousness of the Applicant’s offending is further indicated by his prison sentence, being the last resort in the sentencing hierarchy.
The Tribunal is satisfied that having regard to the evidence to which the above sub-paras of para 8.1.1 of Direction No. 90 are relevant, the nature and seriousness of the Applicant’s conduct weighs strongly against the revocation of the Cancellation Decision.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2 of Direction No. 90)
Paragraph 8.1.2 of Direction No 90 states, in part:[208]
[208]See also Direction No. 90 para 8.1(2)(b).
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
(Emphasis added)
The Tribunal in CZCV and Minister for Home Affairs[209] (CZCV) summarised the task for the Tribunal as follows:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 , [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration & Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCA 705 at [42]–[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration & Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “… there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration & Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
[209][2019] AATA 91 [56]–[57]. The Tribunal in CZCV and the Courts referred to in the related cited cases were considering visa cancellation in the context of predecessors to Direction No. 90. Given the similarity in wording, the same considerations and principles apply to the present matters. The Tribunal therefore follows the approach in these cases.
Nature of the harm (para 8.1.2(2)(a) of Direction No. 90)
Broadly speaking, the Tribunal is required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct.
[210]Para 8.1.2(2)(a) of Direction No. 90.
This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct.[210]
The Applicant submitted that while it accepts that if the Applicant were to reoffend, the nature of the harm is very serious and likely to result in significant psychological, financial and physical harm to members of the Australian community,[211] this must not be considered in isolation and must be taken into account alongside his assessed low risk of reoffending.[212]
[211]A1a [41]; A1b [21].
[212]As assessed by Assoc. Prof. Freeman. See A1a [43], [57], A1(b) [21]; Transcript p 87 [30]-[35], [45].
The Respondent is of the view that the nature of the harm in the context of this consideration is sufficiently serious as to be unacceptable.
Should the Applicant commit drug related offences, members of the public could suffer physical and psychological harm. The Tribunal also notes that purchasing and possession drugs supports the illicit drug trade in the Australian community, causing harm on levels such as drug related crimes (including violence and theft), mental health and other health issues for drug users, social problems and may negatively impacts drug users’ families lives. In this context, one can only speculate as to the damage that may or may not have been caused to individuals who could have been supplied with methamphetamine at the hands of the Applicant.
Having reviewed these matters, the Tribunal finds that the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct nature to be, objectively, high. Overall, the nature of the Applicant’s offending behaviour, irrespective of the fact that it led to his sole conviction, demonstrates a degree of recklessness toward the well-being of the Australian community that cannot be tolerated or dismissed.
Likelihood of the non-citizen engaging in further criminal or other serious conduct (para 8.1.2(2)(b) of Direction No. 90)
Next, the Tribunal is required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence.[213]
[213]Para 8.1.2(2)(b)(i) of Direction No. 90.
The Applicant made the following submissions regarding the likelihood of him engaging in further or other criminal conduct and the level of risk the Australian community ought to be prepared to accept in this regard:
(a) Assoc. Prof. Freeman was of the opinion that the Applicant was at a low risk of reoffending.[214]
(b)This assessment was based on sound and effective predictors of reoffending, noting there was no evidence or personality disorders, alcohol abuse, previous criminal convictions and the like.[215]
(c)The Applicant displayed significant remorse for having associated with the wrong people, notably his co-offender[216] and “for the harm that has been done to the community.”[217] These prior associations had put the Applicant in a position of vulnerability at the time of his offending.[218]
(d)The Applicant’s maintenance of innocence does not equate to increased likelihood of recidivism.[219] This view stands for all types of offending irrespective of the fact that the literature Assoc. Prof. Freeman relied upon in making this observation was based on sexual offending.[220]
(e)The Applicant’s “offence”[221] is not a reflection on his behaviour, supported by Assoc. Prof. Freeman’s comment that he considers “the Applicant’s behaviour” uncharacteristic and in complete contrast to his broader functioning.[222]
(f)The Applicant’s offence is therefore not indicative of further offending.[223]
(g)Noting that Assoc. Prof. Freeman, considers there is no such thing as no risk of reoffending, a low risk of reoffending, as opposed to no risk:
(i) is an acceptable risk and the Tribunal ought to find as such;[224]
(ii) has the result that, when balanced when the serious nature of the Applicant’s offending, renders the first primary consideration as being one that weighs slightly in his favour overall.[225]
[214]A1(b) [44]; A1(c) [22].
[215]A1(b) [44], [56].
[216]A1(b) [44], [48], [52].
[217]A1(b) [58].
[218]A1(b) [45], [46], [49].
[219]G40 p 166 [13.4].
[220]Transcript p 85 [30]-[40].
[221]As distinct from the Applicant’s “offending behaviour”.
[222]A1a [35]; see R1, G40, p 165 [13.2].
[223]A1(b) [50].
[224]Transcript p 11 [5]-[10]. A1(b) [58].
[225]Transcript p 87 [30]-[35].
The Respondent contends that the risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct, ought to weigh against revocation in light of the following:
(a) While the Applicant risk of reoffending has been said to be low,[226] any risk of reoffending in the circumstances of this offence is unacceptable and would expose the Australian community to significant physical, psychological and financial harm.[227]
(b)As the Applicant maintains his innocence, he has not engaged in rehabilitation or demonstrated remorse (for his offending conduct).[228] Rather, he has demonstrated remorse for ‘hanging out with the wrong people – not being a good judge of character.’[229]
[226]R1, G40 p 165 [13.3].
[227]R3 [29], referring to para 8.1.1(2)(a) of Direction No. 90. See also Transcript, p 23 [45], p 24 [5].
[228]R3 [29].
[229]R3 [29], referring to R1, G40, p 161 [4.2].
The Tribunal has considered the available evidence and the parties’ submissions in relation to the Applicant’s risk of reoffending and makes the following comments and findings:
(a) The Tribunal accepts, as do the parties, Assoc. Prof. Freeman’s opinion that the Applicant’s risk of reoffending is low, and that there is no such thing as there being no risk of reoffending.
(b)However, the assessed risk is indeed, that – i.e., “low” risk as opposed to “no risk.”
(c)In the circumstances of the present offence, namely serious drug offending, the Tribunal is of the view that any risk of reoffending is unacceptable, particularly given the significant consequences of drug importation discussed above.[230]
(d)The Tribunal holds view irrespective of the facts that the Applicant is not a drug user and has no other criminal history.
(e)The Applicant’s reliance on Assoc. Prof. Freeman’s opinion that maintenance of innocence does not equate to increased likelihood of recidivism fails to acknowledge that Assoc. Prof. Freeman himself gave oral evidence that a limitation of the assessment scale used to assess risk was that it was based on a study of sexual offenders. While the Applicant submitted this opinion ought to be upheld in the context of drug offending, he was unable to offer and explanation as to how or why this could be so. While the Applicant is not a sexual offender, the Tribunal therefore accepts but proceeds with caution regarding Assoc. Prof. Freeman’s assessment.
(f)Assoc. Prof. Freeman also conceded that the Applicant’s behaviour also included some level of poor behavioural control and impulsivity, which appears to remain unaddressed and therefore constitutes a remaining risk.
(g)The Applicant points to his future protective factors such as his supportive family, secure employment and prosocial supports. However, these factors and supports were available to him at the time of his offending, and his offending still took place.
(h)Concerningly, the Applicant’s attitude demonstrates a lack of remorse and an intent, even at hearing, to minimise his offending.[231] The Tribunal is also concerned by the Applicant’s failure to embrace the opportunity to participate in rehabilitation courses.[232]
(i)The Tribunal accepts the Applicant may be in a position to resume his business if released into the community and that this would be a productive use of his time, which may reduce the likelihood of his offending.
[230]Para 8.1.2(2)(a) of Direction No. 90.
[231]For example, the Applicant’s evidence of his having been “apparently” caught with drugs. See para [42(l)] above.
[232]Para 8.1.2(2)(b) of Direction No. 90.

In this context, the Tribunal is guided by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman) at [86] to [87]:
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed— they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. …
This Tribunal respectfully agrees with Senior Member Morris. In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, this Tribunal summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows:
.… The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’- expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]–[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]–[78].
Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.
Justice Stewart in FYBR (FC) found:
It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590–591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69 ; 180 CLR 404 at 429–430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA1 ; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case — they are to be understood and applied normatively.
Justice Charlesworth also observed:
Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
…
.… The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
Member Burford put it in Rehman as follows:
It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.
Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “ deemed” in the Direction, they weigh against revocation with respect to “ serious crimes”.
However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other consideration.
(Footnotes omitted.)
The Applicant concedes and the Respondent accepts[275] that the primary consideration of the expectations of the of the Australian community in para 8.4 of Direction No. 90 weighs against revocation of the Cancellation Decision. The Tribunal finds this concession appropriate in circumstances where Direction No. 90 establishes a norm of the Australian community’s expectations, which should be applied by the Tribunal irrespective of whether the Applicant is found to pose a measurable risk of causing physical harm to the Australian community and without reference to any independent assessment of the community’s expectations in this particular case.
[275]A1a [119]; A1b [29]; R3 [87].
As to the weight that should be placed on this consideration, the Applicant submitted that:
(a)The extent to which this consideration weighs against revocation is limited where the offending itself was marked by the Applicant’s bad judgment of character (which put him in a vulnerable position)[276] and his assessed risk of reoffending being low.[277]
(b)In any event, both primary consideration 1 and primary consideration 4 significantly outweigh primary consideration 4 such that ultimately, primary consideration 4 weighs slightly in favour of revocation of the Cancellation decision.[278]
[276]Transcript p 95 [40]-[45].
[277]A1a [119].
[278]A1a; Transcript p 19 [25]-[35]; p 93 [35], [45].
In support of its position that the expectations of the Australian community ought to be found to weigh significantly against revocation, the Respondent submitted that:[279]
(a)The applicant has committed serious drug offences which have resulted in terms of imprisonment.
(b)Through his offending, the Applicant has put members of the Australian community at considerable risk. The applicant's interactions with the criminal justice system are all at the expense of the Australian community.
[279]R3 [34]-[36]; Transcript p 23 [30].
The Tribunal proceeds on the basis of the views articulated in Direction No. 90, which are such that the non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the Cancellation Decision should not be revoked.[280] The Tribunal considers that the nature of the character concerns in this instance are objectively serious, such that the deemed community expectation that the cancellation is not revoked ought to be applied.
[280]Citing paras 8.4(2) and 8.4(4) of Direction No. 90.
Due to the application of the “norm” in para 8.4(1) of Direction No. 90, [281] and the deeming operation of the corresponding direction as found by the Full Court in FYBR, this primary consideration weighs strongly against the revocation of the Cancellation Decision. In the Applicant’s case, given the serious nature of the offending, in particular the fact that it involved drug offences, the unacceptable risk of him committing further offences in the future and lack of engagement in rehabilitative efforts, the Tribunal is of the view that significant weight should be given to this primary consideration.
[281]As it is now referred to. See Wightman above at para [203].
The Tribunal makes this finding notwithstanding the fact that the Applicant has been living in Australia for a significant length of time.[282]
[282]Citing principle 5.2(4) of Direction No. 90.
Other considerations (para 9 of Direction No. 90)
Paragraph 9 of Direction No. 90 states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.
International non-refoulement obligations (para 9.1 of Direction No. 90)
The Tribunal is required to consider whether Australia’s international non-refoulement obligations arise on any of the submissions, materials or evidence before the Tribunal.
Neither party made any submission on this consideration and the Tribunal is satisfied that there are no non-refoulement obligations owed by Australia to the Applicant. This is not a relevant consideration in this matter.
Extent of impediments if removed (para 9.2 of Direction No. 90)
Paragraph 9.2 of Direction No. 90 states:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen's age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
In relation to the extent of impediments if removed to New Zealand[283], the Applicant submitted that these impediments are severe[284] and that this factor weighs slightly[285] in favour of revocation of the Cancellation Decision[286] because:
(a)Given his PTSD and PDD conditions, remaining in Australia with his family is key to maintaining a positive support network. He does not have a similar emotional and physical support system in New Zealand[287] and would suffer socially, medically and economically.[288] He has no family living in New Zealand.[289]
(b)The Applicant’s work experience and current business would not be directly transferable and he would be unlikely to acquire employment absent the necessary support.[290]
(c)He accepts he will unlikely experience any linguistic difficulties in New Zealand, albeit minor nuances.[291]
(d)The Applicant has resided in Australia for 26 years and, effectively, has no understanding of the New Zealand way of life, which is exacerbated by his lack of familial or social networks in New Zealand.[292]
(e)Therefore, however culturally similar New Zealand may be to Australia, the Applicant would face extreme difficulties adapting to New Zealand culture.
(f)If removed, the Applicant’s daughter would be faced with the decision of whether she too would relocate to New Zealand.
[283]The Applicant raised the suggestion that he may also be returned to Canada given his dual citizenship (A1a [31]; Transcript p 20 [40]). At hearing, the Applicant accepted that the language and cultural factors and social, medical and economic supports between Australia, Canada and New Zealand are very similar (Transcript p 21 [40]-[45]).
[284]A1a [130]; A1b [32].
[285]Transcript p 22 [10].
[286]A1a [130].
[287]A1a [122].
[288]A1a [126]; Transcript p 22 [5].
[289]A1a [128]. The Applicant’s father gave evidence that he has a brother currently living in New Zealand (see para 61(g) above).
[290]A1a [127].
[291]A1a [123].
[292]A1a [124].
The Respondent’s position with respect to the impediments to the Applicant if he were removed is that:[293]
(a)While the applicant may face some obstacles, he will be able to establish himself and maintain basic living standards in either New Zealand or Canada.[294]
(b)The Applicant is 50 years old and suffers from PTSD and Type 1 Diabetes.[295] This does not present a significant impediment if removed, noting that both New Zealand and Canada have comparable health care systems to Australia.
(c)The Applicant spent his formative years in Canada and will not face substantial language or cultural barriers there, or in New Zealand.[296]
(d)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 and Canada.[297]
[293]R3 [38]–[41].
[294]Para 9.2(1) of Direction No. 90.
[295]Para 9.2(1)(a) of Direction No. 90.
[296]Para 9.2(1)(b) of Direction No. 90.
[297]Para 9.2(1)(c) of Direction No. 90.
At hearing, the Respondent added that although the Applicant suffers from a number of health condition, he is clearly an intelligent, resourceful man[298] and by his own evidence, conceded that perhaps the challenges he would face were not insurmountable.[299]
[298]Transcript p 100 [25].
[299]Transcript p 100 [35].
Accordingly, the Respondent submitted that while it accepts the Applicant will face challenges, this factor should not outweigh, in its submission, the primary considerations of the protection of the Australian community and the expectations of the community.[300]
[300]Transcript p 100 [35].
Having considered the available evidence[301] and the parties’ submissions, the Tribunal considers that the Applicant would likely face significant emotional hardship at the prospect of returning to a country where, to his knowledge, none of his family members[302] continue to reside and where he will not have family support in the treatment of his various health conditions.
[301]Including in relation to the Applicant’s age and health concerns (para 9.2(1)(a) of Direction No. 90), the substantially comparable nature of the language and culture in Australia, New Zealand and Canada (para 9.2(1)(b) of Direction No. 90) and the social, medical and economic supports available to him (para 9.2(1)(b) of Direction No. 90).
[302]Other than, perhaps, the Applicant’s father’s brother.
While the Applicant may certainly prefer to navigate his return into the open community in Australia with the support of his family, if returned to New Zealand or Canada he has the benefit of having run his own business in Australia to assist him in finding employment in a similar industry, whether or not he was self-employed and would have similar access to services.
The Tribunal considers that any difficulties the Applicant would face in re-establishing himself in New Zealand or Canada, including those he faces due to his diabetes and PTSD and PDD conditions would be temporary such that this factor weighs slightly in favour of revocation.
Impact on victims (para 9.3 of Direction No. 90)
Paragraph 9.3 of Direction No. 90 states:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Neither party made any submission on this consideration and the Tribunal is satisfied that it is not a relevant consideration in this matter.
Links to the Australian community (para 9.4 of Direction No. 90)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties (para 9.4.1 of Direction No. 90)
Paragraph 9.4.1 of Direction No. 90 states:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has provided a body of evidence regarding his family ties in support of his contention that the strength, nature and duration of ties consideration should weigh in favour of revoking the Cancellation Decision,[303] This evidence focuses on his relationships with various family members including Applicant has daughter, son, older sister, parents and extended family in Australia including his niece and half-siblings.
[303]A1a [131].
The Tribunal does not seek to summarise this evidence here and notes it has considered the various letters, statements and statutory declarations from the Applicant’s family members in their entirety in the context of this consideration.[304]
[304]G31–33.
In relation to the strength, nature and duration of the Applicant’s ties to Australia, the Applicant submitted at hearing:
(a)His children, parents and sister are an integral and meaningful part of his life, are a positive influence on him[305] and it would be very detrimental to his life and character if he were to be removed from them on a permanent basis.[306]
(b)He has an automotive and boat detailing business in Australia, which he is determined to continue to maintain is he is permitted to remain in Australia.[307]
(c)If allowed to remain in Australia, he intends to continue residing with his parents to provide support to them and his children.[308]
[305]A1a [22].
[306]A1a [13], [27], [28].
[307]A1a [24].
[308]A1a [25]. However, the Tribunal notes the Applicant’s evidence that he would take his mother to NSW is inconsistent his mother’s evidence that that is not her plan. At hearing the accepted that this plan was yet to be canvassed with his mother (Transcript p 83 [5]-[10]). The Tribunal also notes that that the Applicant currently has no relationship with his son.

The Respondent’s position is that it accepts that this consideration favours revoking the Cancellation Decision.[309] The Respondent’s acceptance is based on the evidence that the Applicant has been in Australia for a long period, all his family are here, his family is obviously loving and supporting and they would suffer from practical and emotional hardship if he were removed to New Zealand.[310] The Respondent also accepts that the duration of his time in Australia means that the community may afford a high level of tolerance.[311]
[309]Transcript p 100 [35]–[45].
[310]Transcript p 100 [35]–[45].
[311]Transcript p 100 [35]–[45].
The Tribunal has considered the evidence and the parties’ related submissions in the context of para 9.4.1(2) of Direction No. 90 and considers it uncontroversial that the Applicant’s ties to Australia, particularly his familial ties, are reasonably strong and have endured over the lengthy time he has resided in Australia. As such, the Tribunal finds that the present consideration weighs moderately in favour of revocation of the Cancellation Decision.
Impact on Australian business interests (para 9.4.2 of Direction No. 90)
Paragraph 9.4.2 of Direction No. 90 states:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The parties concede and the Tribunal is satisfied that this factor is not relevant in the present case and should be given no weight.
CONCLUSION - THE WEIGHING EXERCISE
As to how to apply the primary and other considerations in Direction No. 90, the Tribunal in guided by Deputy President Boyle in Wightman:
Direction 90 guides the decision maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [31] above). It provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration & Border Protection and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. …
(Emphasis added, footnotes omitted).
The Tribunal follows the approach directed by the above cases.
The Applicant submitted that overall, the only consideration that weighs against him is the expectations of the Australian community[312] and that the considerations in his favour significantly outweigh those community expectations.[313]
[312]Transcript p 23 [15]–[20].
[313]Transcript p 23 [15]–[20].
The Respondent submitted that overall, the best interests of minor children consideration and the “other” considerations of impediments if removed and strength, nature and duration of ties favour revocation but only to a minimal degree.[314] The Respondent is of the view that the first primary consideration of the protection of the Australian community, and the fourth primary consideration of expectation of the Australian community weigh against the Applicant and also outweigh the considerations that fall in his favour.[315]
[314]Transcript p 101 [35]–[45].
[315]Transcript p 24 [20]–[30]; p 100 [45]; p 101 [5], [35]–[45].
As to the first primary consideration, the protection of the Australian community (para 8.1 of Direction No. 90), the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the offences or other serious conduct and the likelihood of that occurring. For the reasons set out in paras [73]-[92] above, the Tribunal has found that given:
(a)the nature and seriousness of the Applicant’s conduct to date is “objectively high” (paras 8.1(2)(a) and 8.1.1 of Direction No. 90); and
(b)the “very serious” nature of the harm and the low, yet unacceptable risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No. 90),
the primary consideration of the protection of the Australian community weighs strongly against revocation of the Cancellation Decision.
Looking at the second primary consideration (para 8.2 of Direction No. 90), family violence is not applicable to this application.
With respect to the third primary consideration, the best interests of minor children in Australia (para 8.3 of Direction No. 90), the Tribunal has found that for the reasons set out in paras [110]-[120] above, the best interests of the Applicant’s minor son weigh slightly in favour of revocation.
The fourth primary consideration, the expectations of the Australian community (para 8.4 of Direction No. 90), as it must and as is the “norm,” weighs strongly against revocation of the Cancellation Decision. For the reasons set out at paras [122]-[131] above, significant weight should be given to this primary consideration.
In relation to the “other considerations” identified in para 9 of Direction No. 90:
(a)International non-refoulement obligations are not relevant in this matter (para 9.1 of Direction No. 90).
(b)The extent of impediments if the Applicant were removed from Australia is a factor weighing slightly in favour of revocation (see paras [136]–[143] above) (para 9.2 of Direction No. 90).
(c)The impact on victims consideration does not arise and is therefore neutral (para 9.3 of Direction No. 90).
(d)The Applicant’s links to the Australian community (para 9.4 of Direction No. 90); being:
(i)the strength, nature and duration of the Applicant’s ties (para 9.4.1 of Direction No. 90) weigh moderately in favour of revocation of the Cancellation Decision (see paras [144-149]); and
(ii) the impact on Australian business interests (para 9.4.2 of Direction No. 90), which has no relevance to the present matter;
indicate that this consideration overall weighs moderately in favour of the revocation of the Cancellation Decision.
Having weighed the considerations in favour of revocation of the Cancellation Decision and the considerations against revocation of the Cancellation Decision, the Tribunal finds that the number of considerations weighing in favour of revocation are, prima facie, greater than those weighing against revocation.
There is factual material, which is moderately in the Applicant’s favour, in relation to the strength, nature and duration of his ties to Australia. There is also material regarding the impediments if he were removed from Australia and the best interests of his minor son that the Tribunal considers weigh slightly in favour of revocation.
Despite the considerations weighing in the Applicant’s favour, and the consequences of the Applicant being removed from Australia and returned to New Zealand or Canada, the Tribunal is nonetheless of the exceptionally strong view that, due to:
(a) the unacceptable risk of harm to the Australian community; and
(b) the seriousness of the Tribunal’s concerns regarding there being any risk at all of the Applicant reoffending in a similar way,
the protection of the Australian community from future harm (from either the Applicant’s future offending, or other serious conduct) is a primary consideration which, in addition to the expectations of the Australian community, outweigh any considerations weighing in the Applicant’s favour.
Therefore, the Tribunal finds there is not another reason why the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 21 October 2021, not to revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa pursuant to s501CA(4) of the Migration (Cth) is affirmed.

I certify that the preceding 168 (one hundred and sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

.............[Sgd]..........................................................
Associate
Dated: 14 January 2022

Date of hearing: 22 December 2021

Solicitors for the Applicant: Mr T Mwilambwe, Armstrong Legal

Solicitors for the Respondent: Ms J Strugnell, Minter Ellison

The Tribunal notes that the Applicant made representations in accordance with the invitation to do so.

See s 501CA(4)(a) of the Migration Act and [12] above.

In relation to this primary consideration, the Applicant also submitted the available materials “indicated with sufficient clarity” that the Applicant’s involvement in the offending, to the extent that he associated “with a bad co-offender and generally his bad judge of character” (A1a; [32]), the Tribunal cannot go behind the Applicant’s convictions or the factual matters upon which they are based. See further at para [82].

The Applicant also submitted that his PTSD suffered following a claimed assault in 2014 must be taken into account in the context of his general vulnerability at the time of his offending (A1a; [33]). At hearing, the Applicant accepted that logically, this did not follow when the offending conduct occurred in 2013, prior to the claimed assault (transcript, p21).

A1(a) [76]-[84]. The Tribunal, after seeking explanation from the Applicant, remains unclear of the application of this case to the present matter other than an example of a matter where this consideration was found to be in the Applicant’s favour. The decision of Allan and Minister for Immigration and Border Protection [2016] AATA 1077 was referred to in a similar manner (A1(a) [11]). The Applicant also referred to Brown v Minister for Immigration and Border Protection [2015] 235 FCR 88 and Tusitala v Assistant Minister for Immigration and Border Protection [2016] FCA 845 as authorities for the proposition that the bests interests of the child would be “a primary consideration” (A1(a) [85], [88], [89], [114]).

See also authorities cited by the Applicant at A1(a) [102]-[108], [11].

[2022] AATA 38

14 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Standing

Date of hearing:	22 December 2021
Solicitors for the Applicant:	Mr T Mwilambwe, Armstrong Legal
Solicitors for the Respondent:	Ms J Strugnell, Minter Ellison