CLRJ and Minister for Home Affairs (Migration)

CLRJ and Minister for Home Affairs (Migration) [2019] AATA 4892 (4 November 2019)
Division: GENERAL DIVISION
File Number(s): 2019/5068
Re: CLRJ
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

Decision
Tribunal:Senior Member Damien O’Donovan
Date:4 November 2019
Date of written reasons 8 November 2019
Place:Sydney

The decision of the Respondent made on 12 August 2019, being a decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class BF-C Transitional (Permanent) visa under s 501CA(4) of the Migration Act 1958 (Cth), is set aside.
In substitution, the decision to cancel the Applicant’s Class BF-C Transitional (Permanent) visa is revoked.
Note: At the hearing the Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act 1975 prohibiting the disclosure of information tending to reveal the identity of the applicant in these proceedings.
........................[sgd]................................................
Senior Member Damien O’Donovan
Catchwords
MIGRATION – non-revocation of mandatory cancellation of visa – where visa was cancelled under s 501(3A) because applicant did not pass the character test – substantial criminal record under s 501(7) – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 79 – risk of re-offending – the protection and expectations of Australian community – minor children – strength nature and duration of ties – impediments to applicant if removed – decision under review set-aside
Legislation
Direction No 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Migration Act 1958 (Cth)
Cases
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Migration Act 1958 – Direction under section 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (instrument made 21 December 2018, commenced 28 February 2019)
Convention on the Rights of the Child, opened for signature on 20 November 1989, (entered in to force 2 September 1990) art 4
REASONS FOR DECISION
Published 8 November 2019
INTRODUCTION

These are written reasons for the decision I made on 4 November 2019.
CLRJ ('the applicant') was born in Malaysia in 1950. The applicant arrived in Australia on 13 January 1969 and has not left since. He remains a Malaysian national.
After a promising start to his new life in Australia which saw him complete his Higher School Certificate, commence a science degree and transfer to the study of Medicine, the applicant began to drift towards a life of crime. Within a relatively short period the applicant was incarcerated for drug offences.
In 2011 the applicant was sentenced to 16 years in prison for crimes including supplying and manufacturing a prohibited drug. The non-parole period in relation to that sentence will end shortly. As a consequence of those convictions and the sentences they attracted, the applicant fails the character test under the Migration Act 1958 (the Act) and the Minister was obliged to cancel his visa under section 501(3A). In these proceedings the applicant seeks to make the case to have his visa cancellation revoked.
The 50 years the applicant has spent in Australia have been marked by long periods of incarceration, long periods working on the fringes of society, contrasted with one significant period of committed work as a parent to his two eldest children. Those children have grown into fine adults who have worked hard with the applicant to make the case for the revocation of his visa cancellation.
I am faced with a difficult task. I must determine whether the applicant will, on his release from prison, be allowed to re-join his family in Australia or whether, having regard to the need to protect the Australian community from the harm that arises from criminal activity (among other things), the statutory revocation of his visa should be affirmed with the result that he will lose the right to live in Australia and be forced, at the age of 69, to return to Malaysia – a country he has not lived in for more than 50 years and where he has no family and few connections.
For the reasons set out below I have set aside the decision under review and revoked the visa cancellation decision allowing the applicant to remain in Australia following his release from prison.
Before explaining how I reached this decision, it is useful to explain how the decision came to be before me and outline the statutory framework under which the decision is made.
HISTORY OF DECISION
On 10 December 2009 the applicant was taken into custody on suspicion of involvement in drug manufacture and distribution. In December 2011 he was sentenced to 16 years in prison with a non-parole period of 10 years calculated from 10 December 2009. He is eligible for parole on 10 December 2019. As the applicant was uncertain about his fate if he were released on parole, he took steps to clarify his visa status while he was still serving his sentence.
On 13 February 2018 Richard Nassif, an employee of the NSW Department of Justice contacted the National Character Consideration Centre ('the NCCC') in the Department of Home Affairs and advised that the applicant wished to expedite the visa cancellation decision.[1] He did so in order to set in train the review process which may allow the applicant to remain in Australia.
[1] G12 folio 94.
On 14 February 2018 the NCCC informed the applicant that visas are usually cancelled based on a person's date of release and, if the applicant would like his visa cancelled earlier, he would need to write to the NCCC explaining the reasons why.[2] On 26 February 2018 the applicant wrote a letter to the NCCC to cancel his visa under s 501(3A) of the Act. He stated that he wished to apply for revocation and provided reasons why.[3]
[2] G12 folio 94.
[3] G12 folio 95.
On 3 April 2018 the applicant’s daughter Ms N.L submitted letters of support for the applicant prepared by family and friends of the applicant.[4]
[4] G11.
On 3 May 2018 a delegate of the Minister issued a notice of visa cancellation under section 501(3A) of the Act. The notice cancelled the Class BF Transitional (Permanent) visa which the applicant had held from 1 September 1994.[5]
[5] G18 folio 152.
On 16 May 2018 the applicant signed a Request for Revocation of a Mandatory Visa Cancellation under section 501(3A) Form[6] and Response to Notice of Mandatory Visa Cancellation under section 501(3A) Form.[7] On 8 June 2018 this material was submitted to NCCC revocations along with supporting material.[8] The applicant provided information about his family, his relationship with his children, his chance of re-offending, the courses he had completed in prison, his ties to Australia and an assessment of what was likely to happen to him if he is returned to Malaysia. He appointed his oldest son Mr N.L to represent him. The applicant also attached evidence in support of the application including birth certificates for his children, certificates of proficiency earned in prison, and letters of support from family members and friends.[9]
[6] G5 folio 37.
[7] G6 folio 44.
[8] G5 folio 36.
[9] G7-G10.
On 26 March 2019 the NCCC sent a procedural fairness letter inviting comment on additional material including a National Criminal History Check released on 20 March 2019,[10] and a Conviction, Sentences and Appeals report from the NSW Department of Corrective Services dated 1 May 2018.[11] The applicant was also provided with a copy of the new Ministerial Direction 79 ('the Direction') (discussed further below).
[10] G3.
[11] G14.
On 20 April 2019 Mr N.L wrote a letter on the applicant’s behalf in response addressing the criteria in the Direction.[12] The applicant did not dispute the information in the National Criminal History Check dated 20 March 2019 regarding his criminal convictions and sentences, nor did he dispute that he does not satisfy the character test provided for in the Act.
[12] G13.
On 12 August 2019 the Department of Home Affairs wrote a letter to the applicant informing him that a decision was made not to revoke the visa cancellation decision made under section 501(3A) of the Act.[13] The letter informed the applicant that he was entitled to have that decision reviewed by the Tribunal. The letter included a copy of the sentencing remarks of the District Court made in December 2011.[14]
Application to the Tribunal
[13] G2.
[14] G4.
On 19 August 2019 the applicant's representative applied to the Tribunal for review of the decision of the Department. Attached to the email was an application for review which included the reasons why the application was being made.[15]
[15] G1.
G Documents were prepared by the respondent which included all of the material before the delegate. Following the filing of the application, the applicant also filed:
(a)A statement from his eldest daughter – Ms N.L;
(b)A statement from himself; and
(c)A statement from Ms L.J – his first wife’s sister.
The respondent filed a bundle of documents obtained under summons and from other sources which consisted of:
(a)Documents produced under summons by the Commissioner of Police (NSW);
(b)Documents produced under summons by Corrective Services of NSW;
(c)Refugee Review Tribunal – Research response;
(d)DFAT Country Information Report – Malaysia;
(e)The Death Penalty for Drug Offences: Global Overview 2018; and
(f)National Drug Strategy 2017-2026.
The respondent also handed up a United Nations report entitled ‘Social Protection in Malaysia’ at the hearing.
At the hearing both the applicant and his daughter responded to questions from the Tribunal. The applicant was cross-examined by the respondent’s representative.
Both parties filed statements of facts, issues and contentions and made oral submissions.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations [about the revocation] in accordance with the invitation [proffered under subsection (3)]; 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.
The applicant made the representations required by s 501CA(4)(a) and, for the brief reasons explained below, the applicant does not pass the character test. Consequently, the only substantial issue to be determined is whether the discretion to revoke the mandatory cancellation because there is another reason to do so, should be exercised in the applicant’s favour.
In considering that question the Tribunal approaches the matter consistently with the observations of the Full Court of the Federal Court in Minister for Home Affairs v Buadromo:[16]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[17]
[16] [2018] FCAFC 151.
[17] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Accordingly, I will consider whether, taking into account the considerations in Part C of the Direction, there is another reason why the original decision should be revoked. If there is, then that is determinative and I am obliged to revoke the original decision.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound, in accordance with s 499(2A), to comply with any lawful directions made under the Act. In this case Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (’the Direction’) applies.[18]
[18] On 28 February 2019, the former applicable direction, Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
Paragraph 6.2 of the Direction provides general guidance in relation to the exercise of the discretion. It relevantly provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens…The principles below…reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.3 of the Direction relevantly provides:
(1)…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…and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should cancel [non-citizens’] visas if they commit serious crimes in Australia or elsewhere;
(3) A non-citizen who has committed a serious crime…should generally expect to forfeit the privilege of staying in Australia.
(4)…
(5) Australia has a low tolerance of any criminal or other serious conduct by people 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.
(6)…
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether the non-citizen’s visa should be cancelled…
The Direction requires that, informed by the principles set out in paragraph 30 above, I must take into account the considerations in Part C of the Direction in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[19] Part C commences at paragraph 13. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.[20]
[19] The Direction, paragraph 7(1)(b).
[20] Ibid, paragraph 13(2)(a)-(c).
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Tribunal notes the significance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[21]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 [now Direction 79] does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 [now Direction 79] does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 [now Direction 79] concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[22]
[21] [2018] FCA 594.
[22] Ibid at [23].
THE APPLICANT'S BACKGROUND - WORK, SOCIAL AND CRIMINAL HISTORY
The following represent my findings of fact. The evidence on which they are based is as cited. As it is necessary for me to form a view about the applicant’s likelihood of re-offending, it has been necessary to make a number of findings about his criminal past. The applicant, although he was found guilty, and in some cases, pleaded guilty to a number of criminal charges, does not accept the factual basis on which he was charged and sentenced. He is entitled to a limited extent to seek different findings in this Tribunal. The principles to be applied by the Tribunal when considering evidence of this nature were comprehensively summarised by Justice Bromberg in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [41] to [77]. The principles are pithily summarised in the following passage of Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155 at [42], cited with approval by Justice Bromberg:
The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
Accordingly I have made findings about the circumstances in which the applicant’s prior offending took place. I will explain the reasons for my findings where there has been significant dispute about the particular factual circumstances of the offences committed.
The applicant arrived in Perth, Australia on 13 January 1969.[23] He was 19 years old when he arrived. He had travelled to Australia for the purpose of studying and was permitted to enter Australia under a temporary visa for an anticipated stay of 19 months. He has not left Australia since his arrival. He is estranged from his Malaysian family and has not had any contact with them for over 20 years. His evidence is that his parents have died and all of his 12 siblings no longer live in Malaysia. He identifies as Australian and speaks English as his primary language.
[23] G15 folio 104.

In 1969 he passed the Higher School Certificate Examination. The following year he enrolled at university and successfully completed the first year of a science degree. The applicant’s results were such that he was permitted to enrol in the second year of the medical course in 1971. The applicant became unsettled during this year at university. He claimed at the time and still claims that this was due to the death of his parents, although this explanation for his behaviour was rejected by his brother when he spoke to the applicant’s parole officer some years later. His brother’s view was that the applicant’s poor behaviour pre-dated the death of his parents.[24] The applicant did not sit for his examinations that year and has not attended university since.[25]
[24] Exhibit R2 folio 24.
[25] Ibid.
Records indicate that after leaving university the applicant was then employed as a chef at various Chinese Cafes.[26] In March 1974 he married his first wife (‘Ms K.J’).[27]
[26] Ibid.
[27] Ibid.
The Tribunal does not have much information about this marriage, but there is evidence that Ms K.J was a heroin addict and they lived together only for a short period of time.[28] It is claimed in one statement that the applicant assisted Ms K.J with her drug addiction in the early seventies and that he convinced her to get rehabilitated.[29] That evidence is however vaguely expressed and inconsistent with other established patterns in the applicant’s life. I do not accept that the applicant assisted his wife in any way to seek rehabilitation in relation to her use of drugs.
[28] Ibid and G11 folio 87.
[29] G11 folio 87.
After the applicant split from his wife he was living with a group of women who were heroin addicts.[30] On the account the applicant gave to the Tribunal, they asked him to go to Chinatown to source heroin from sailors who come to Sydney. He did that and in the words of the applicant was introduced to a buyer who turned out to be a narcotics agent. The applicant was charged with importing prohibited imports and was convicted and sentenced to 8 years in prison with a non-parole period of four and a half years.[31] The recommendation was that he be deported at the end of his sentence. The applicant appealed the severity of the sentence but the appeal was dismissed.[32] He now claims that he was never involved in importation but was merely trying to buy heroin on someone else’s behalf.[33] Given that in his evidence he described the narcotics agent as the ‘buyer’ in the scenario leading to the charges and the charge on which he was sentenced was importing prohibited imports, I do not accept the applicant’s claims that he was simply acquiring heroin for the personal use of other users. I am satisfied that the applicant had a role in the distribution of drugs. I am however willing to proceed on the basis that he was not involved in importation of drugs into Australia. That does not significantly diminish my assessment of the seriousness of the crime of which he was convicted.
[30] Applicant’s oral testimony.
[31] G3 folio 28.
[32] Ibid.
[33] Applicant’s oral evidence.
The applicant was released from custody on 24 August 1979.[34] For reasons which are never fully explained the applicant was not liable to deportation on release and so remained in Australia.[35]
[34] G16 folio 109.
[35] G16 folio 109.
Soon after his release from prison the applicant was arrested and charged again.
At the time of the arrest he was living alone in a flat in Allawah. He had worked briefly as a labourer but was then on unemployment benefits.[36] He was charged with supplying a drug of addiction. On 16 October 1980 the applicant was sentenced by the Sydney District Court to 6 years in prison to commence on 8 February 1980 with a non-parole period of 2 years and 3 months.[37]
[36] Exhibit R2 folio 24.
[37] G3 folio 28.
In his evidence before the Tribunal the applicant claims that this charge was some kind of frame up by the police involving the planting of a large amount of LSD on him. His evidence was that the conviction was unjust, but because the non-parole period was so short he was advised not to appeal.
The applicant’s account of events which led to this conviction was difficult to understand as a logical sequence of events. He said that he was working in a snooker parlour and a friend asked him to go and collect a package. No package was given to him but when he was stopped and searched the police found in his bag two packages with 20,000 tabs of LSD in them.[38]
[38] Applicant’s oral evidence.
This confusing version of events is not unlike the version he gave to his probation and parole officer in October 1980. He told that officer:
…that the drugs were given to him by persons purporting to be police officers and claims that he had not hoped to achieve any financial advantage from his actions.[39]
[39] Exhibit R2 – folio 24.
Given how garbled the applicant’s innocent explanation is for how he came to be in possession of a large amount of LSD, and the fact that a jury was willing to convict him in relation to the charges, I am satisfied that the applicant was involved in the criminal supply of LSD and that there was no innocent explanation for how he came to be charged and convicted. I reject the claim that he was framed by police.
When the applicant was serving his sentence in relation to the supply of LSD he met fellow prisoner (‘Mr T.B’). The applicant maintained an association with Mr T.B until he died around 2001.[40] On the applicant’s account it was Mr T.B who, while he was dying, gave him the drug manufacturing facility which led to the applicant’s arrest and incarceration in 2009.. On the applicant’s account this association was an innocent one in which he involved himself in various legitimate businesses which Mr T.B ran. I am prepared to accept that may be true for a time, but given that Mr T.B was involved in the acquisition of drug manufacturing equipment around the year 2000 and gave it to the applicant when he died, I am not prepared to accept the applicant’s claims that the association was entirely innocent in nature. The association suggests that the applicant had a significant association with unreformed criminals after serving his second sentence.
[40] Applicant’s oral evidence.
There is limited evidence available about what happened when the applicant was released from prison. He was convicted of stealing in 1981[41] which related to the applicant taking a cheque which belonged to his brother and cashing it.[42] In 1984 the applicant was charged with stealing a pen from the University of NSW library.[43] He was convicted and fined $400 in relation to each offence.[44]
[41] G3 folio 28.
[42] Applicant’s oral evidence.
[43] Applicant’s oral evidence.
[44] G3 folio 28.
On 29 January 1985 the applicant married his second wife (‘Ms M’) in Sydney on 9 February 1985. What followed appears to be the most stable and productive period of the applicant’s life. He and his wife ran restaurant businesses which appear to have been successful.[45]
[45] Applicant’s oral evidence.
In 1986 the applicant's daughter, (‘Ms N.L’) was born.
In 1987 the applicant's son, (‘Mr N.L’) was born. Mr N.L was born with a disability, osteogenesis imperfecta (brittle bones). The applicant is described as being supportive during Mr N.L’s childhood assisting him with his physical needs in relation to his disability and mobility restrictions and being actively involved in his son’s school. The applicant gave evidence that in this period of his life he spent a lot of time working with his son. He is justifiably proud of how he spent his time.
The applicant and his wife, Ms M divorced on 10 August 1990. Despite the divorce the applicant continued to live in the same house as his family. His daughter gave evidence that even though his parents slept in separate rooms, she was not aware that they were divorced until she was in high school.[46]
[46] Oral evidence of Ms N.
In the 1990’s the applicant’s focus appears to have been on his family, although his continuing association with Mr T.B makes it difficult to rule out the possibility that he continued to have involvement with persons engaged in criminal activity. His daughter gave evidence about her father’s involvement in her life at this time. He was very supportive of her competitive swimming aspirations, driving her to training twice a day and taking her to swimming meets across NSW. With his supportive involvement she was able to become a regional state level swimmer.[47]
[47] Ibid.
At some point in the 1990s the applicant moved out of the family home and I am satisfied that he began associating with drug users again by no later than the year 2000. Around this time the applicant formed a relationship with Ms M.M. He had known her in the past but took up with her again after a chance meeting in a shopping mall. Ms M.M owned her own business but was a regular drug user – using cocaine, speed and marijuana. The applicant conceded that he would ‘sometimes’ use drugs during this period.[48]
[48] Applicant’s oral evidence.
On 26 June 2000 the applicant was found in possession of dangerous drugs. The applicant was convicted and fined $1,200 by the Southport Magistrates Court - however the conviction was not recorded.[49] The applicant’s evidence was that the drug he was in possession of was marijuana.[50]
[49] G3 folio 28.
[50] Applicant’s oral evidence.
In 2001, the applicant’s third child (‘L.M’) was born. Her mother is Ms M.M. The applicant is not listed as the father on the birth certificate of L.M; however it is accepted that he is her father.
In 2003, the applicant’s fourth child I.M’ was born. Her mother is also Ms M.M. The applicant is not listed as the father on the birth certificate of I.M; however it is also accepted that he is her father. I.M was born a foetal alcoholic with 50% brain damage as a result of her mother allegedly attempting to abort the pregnancy with alcohol.
The evidence indicates that I.M was born in Brisbane and I.M never lived with the applicant.[51] Very soon after the birth of I.M both children were removed to the care of their legal guardians who live in Brisbane. Prior to his incarceration in 2009 the applicant would fly to Brisbane regularly to attend meetings with the Department of Community Services in Queensland. He did this up to 12 times each year. Notwithstanding this involvement, the applicant has never had anything approaching a parental role with the children since the birth of I.M. He was involved in the sense that he would discuss their welfare regularly with their legal guardians prior to his current incarceration and did visit but the involvement did not extend beyond that. Since he has been incarcerated contact has been necessarily limited. He speaks to the children infrequently and for short periods on the telephone. Neither child knows that the applicant is in prison.[52]
[51] Applicant’s oral evidence.
[52] Applicant’s oral evidence.
At some point in the early 2000’s, T.B asked the applicant to do him a favour which was to store drug manufacturing chemicals and equipment. According to the applicant the arrangement was that someone would collect the chemicals and equipment from him at some stage. However in the end no-one turned up so the applicant stored a significant quantity of drug manufacturing chemicals and was in possession of equipment capable of manufacturing illegal drugs for about 8 years.[53]
[53] Applicant’s oral evidence.
At some point after T.B’s death, the applicant commenced a relationship with T.B’s former partner Ms R.R.
In 2005, the applicant's fifth child, M.R was born.[54] Ms R.R was the mother. Initially M.R was cared for by her mother. The applicant gave evidence that he assisted with the care of M.R however at some point the Department of Community Services got involved and M.R was removed to the care of her maternal grandmother, P.R, who has full parental care.[55] The applicant provided P.R with assistance and M.R would sometimes stay overnight with the applicant. P.R in a letter of support says that the applicant has helped her considerably by “being supportive emotionally, morally and occasionally monetarily.”[56]
[54] G7 folio 64.
[55] G11 folio 88.
[56] Ibid.
On 9 October 2006 the applicant attended premises which were under police surveillance and which were subsequently found to have equipment inside which could be used for the manufacture of illegal drugs. Police searched the applicant’s vehicle and bag. The police found items which may have been drugs in the applicant’s bag, and large amounts of cash, drug paraphernalia and what was believed at the time to be methylamphetamine in the applicant’s vehicle. Also found was a notebook with notes pertaining to chemicals, chemical recipes and references to chemistry terminology. The applicant was also found with a substance in his wallet that the police believed was possibly ‘cannabis resin’.
In police interview the applicant offered innocent explanations for all the items found. In particular he claimed that the money belonged to him and he had won it at Randwick racecourse. When asked what day and what race he said he did not want to say. During the interview he changed his story and said he was transferring money from one bookie to another but did not want to disclose the names of the bookies because they had a right to privacy.[57]
[57] Exhibit R2.
The applicant told the Tribunal in his evidence that the money was in fact not his but belonged to horse trainers who he laid bets for.
In his evidence before the Tribunal the applicant confirmed that an ounce of methamphetamine was found in his vehicle.[58]
[58] Applicant’s oral evidence.
A female companion of the applicant was also questioned by police but not formally interviewed “due to the fact that she was well affected by drugs”.[59]
[59] P11 respondent’s tender bundle.
The applicant was subsequently charged with drug offences but was acquitted.[60]
[60] Exhibit A3 p2.
While the matters described in the police reports concerning the events of 9 October 2006 may not be sufficient to establish the commission of a criminal offence, they do establish that the applicant was associating with drug users, drug manufacturers and drug dealers. The applicant claims that he did not know that the premises he was visiting was a drug lab, but I reject that evidence.
I am also satisfied that at the time he was a drug user himself (a fact which he reluctantly confirmed but appeared to minimise in his evidence before the tribunal).[61]
[61] Applicant’s oral evidence.
The full extent of his involvement in drug manufacturing and distribution in 2006 is unclear, but it is sufficient to note that I am satisfied that it would be wrong to see his 2009 conviction as an isolated event which came out of blue after more than 25 years of the applicant avoiding criminal activity. In my assessment, the conduct in 2009 which led to his conviction was the culmination of long associations with criminals who the applicant knew were heavily involved in the use, manufacture and supply of drugs and his own consistent use of illegal drugs over a long period.
On 7 February 2008 the applicant was again found to be in possession of a prohibited drug. The Parramatta Local Court ordered that the drugs were to be forfeited.[62]
[62] G3 folio 28.
On 11 December 2009 the applicant was taken into custody following a police investigation into the distribution of methylamphetamine in Nowra NSW.
In December 2011 the applicant was before the District Court and was convicted of the following charges and received the following concurrent sentences:
(a)Manufacture Prohibited Drug - Large Commercial Quantity - - said to be "much more" than 1.4 kilograms of methylamphetamine) - sentenced to 16 years in prison with a non-parole period of 10 years;[63]
(b)Supply Prohibited Drug - Commercial Quantity (supplying 511.1 grams of methylamphetamine) - sentenced to 16 years in prison with a non-parole period of 7 years;[64]
(c)Supply Prohibited Drug - Commercial Quantity (supplying 675 grams of methylamphetamine) - sentenced to 10 years in prison with a non-parole period of 7 years;[65]
(d)Possess precursor intend to use in manufacture/production (possessing 163.8 grams of the precursor, Ergotamane - intended for use in the manufacture of LSD) - sentenced to 5 years in prison;[66]
(e)Possess precursor intend to use in manufacture/production (possessing 42.7 grams of Safrole intended to use in manufacture of MDMA or ecstasy) - sentenced to 5 years in prison;[67]
(f)Possess precursor intend to use in manufacture/production (possessing 48.3 kilograms of the precursor, Isosafrole, intended for use in the manufacture of MDMA) on 10 December 2009 - sentenced to 5 years in prison.[68]
[63] G4 folio 35.
[64] Ibid.
[65] Ibid.
[66] Ibid.
[67] Ibid.
[68] Ibid.
The Court recognised that pleas of guilty had been entered in the Local Court as to some of the matters and in the District Court as to other matters following plea negotiations. This was taken into account when sentencing the applicant.
The sentencing Judge made the following remarks when delivering his sentence in relation to the circumstances that had led to the applicant committing the offences:
It seems that he had a civil debt of some $80,000 incurred in connection with defending some criminal charges of which he was acquitted and that in order to pay off this debt he decided to make and sell illegal drugs. He had access to or the custody of equipment that had belonged to some acquaintance of his who had been sent to prison, presumably for drug related offences.[69]
[69] ibid, folio 31.
The sentencing Judge noted however that:
The offences are substantially aggravated by his previous convictions, even though they are old, and by the quite elaborate degree of planning. The offences were committed by a very intelligent man who had all the wherewithal to earn a substantial income by lawful means. There is no suggestion that he was in danger of his life if he did not pay the debts that he had incurred or even in danger of a beating. It is no excuse that he had a debt to pay off.[70]
[70] ibid, folio 34.
In relation to the likelihood of re-offending his Honour was persuaded that there was a "high likelihood that this would be the last episode of criminality" by the applicant, based on his age and therefore his sentences were based on a "desirability that he should have the chance to enjoy some twilight years back in the community".[71]
[71] Ibid.
The applicant gave further evidence to the Tribunal about the context in which these offences took place. The drug equipment was given to him by Mr T.B. Ms R.R arranged for the supply of fresh chemicals and he started to make drugs with her. He set up the lab himself. His co-accused loaned him the money to purchase the chemicals for manufacture.[72] Notwithstanding these admissions the applicant invites the Tribunal to find that his offending was an aberration which Ms R.R induced and orchestrated. According to the applicant’s evidence Ms R.R, prompted and promoted his criminal activities.[73] I reject that evidence.
[72] Applicant’s oral evidence.
[73] Exhibit A3 p 3.
The sentencing remarks establish that the applicant ‘was at the apex of his manufacturing and distribution network and in consequence of his activities large quantities of an addictive drug no doubt made their way to mainly young people…’[74]
[74] G4 folio 32.
That is the basis on which the applicant was given a head sentence of 16 years imprisonment commencing on 10 December 2009 and I am not satisfied I should look behind those findings even if I were legally able to do so.
During his time in prison for the offences outlined in paragraph 20, the applicant gained the following Certificates:
(a)Certificate III in Food Processing issued on 5 June 2014;
(b)Certificate of Achievement for completion of the Health Survival Program on 26 September 2014; and
(c)Certificate of Proficiency for Certificate III in Retail Banking (Combined) issued on 22 June 2017.

He is eligible for parole from 10 December 2019 and his sentence concludes on 10 December 2025.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
In December 2011, the applicant was sentenced to 16 years imprisonment by the District Court after having been convicted of multiple offences including the supply of a prohibited drug in commercial quantities.[75] The Tribunal is therefore satisfied that the applicant does not pass the character test and the passing of it cannot be relied upon as the basis for the revocation of his visa cancellation. The applicant does not suggest otherwise. Accordingly, the applicant must establish that there is another reason why the original decision should be revoked.
[75]G3 folio 26.
APPLYING THE DIRECTION
In determining whether there is another reason why the original decision should be revoked I am obliged to take into account the considerations outlined in Part C of the Direction. Those considerations are divided into Primary Considerations and Other Considerations. The Primary Considerations are:
(a)Protection of the Australian community (which includes other considerations within it);
(b)Best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
The other considerations are:
(a)International non-refoulement obligations
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments the applicant will face to establishing themselves and maintaining basic living standards if removed.
Primary Consideration A: The protection of the Australian Community
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. This criterion covers not only proven criminal conduct but also behaviour or conduct of concern where a conviction may not have been recorded or where the conduct may not strictly speaking have constituted a criminal offence. Such conduct may include, for example, involvement in activities indicating contempt or disregard for the law.[76]
[76] See definition of Serious Conduct in Direction 79 Annex B.
Paragraph 13.1(2) of the Direction further provides that decision-makers should 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.
Submissions
In relation to this criterion the applicant submitted that:
(a)He would not re-offend or pose any danger to the Australian community based on his age, remorse and good behaviour during his sentence;
(b)His family ties will assist him not to re-offend and although family ties were not sufficient to prevent re-offending in the past, now that his family knows of his criminal past they will be in a better position to prevent him from re-offending;
(c)His crimes are serious but were not committed with the intention to harm others;
(d)30 years without convictions indicates an intention and capacity to abide by the law – his most recent offence being a severe lapse in decision making;
(e)The parole system which will require him to undergo drug testing will ensure that he is not involved in drugs and criminality otherwise he will be returned to prison to serve out the remaining 6 years of his sentence; and
(f)Family support, including financial support is now more available than it was in the past.
In relation to this criterion the respondent submitted:
(a)The magnitude of the applicant’s offending is reflected in the significant sentences imposed upon him in 3 different decades;
(b)The cumulative effect of the persistent and serious offending is significant;
(c)The applicant was formally warned about the consequences of further offending;
(d)The risk to the Australian community if the criminal conduct is repeated is very significant given the very serious and widespread harms that arise from drug use, and the impact of the applicant’s conduct was mainly on young people – consequently even a low risk of re-offending would be unacceptable;
(e)There is a real risk of re-offending given (i) the persistence of the applicant’s offending; (ii) the scale of the applicant’s operation and the improbability that ‘he was closing up shop’ when caught; (iii) the failure of the applicant to take responsibility for his offending; (iv) the failure of protective factors like family to have worked in the past; (v) the applicant’s conduct has not been tested on release; (vi) the applicant’s failure to accept that drugs cause harm;
(f)The applicant was offending at the age of 60 and there is no reason to think that because the applicant is 70 years old that this will make a difference; and
(g)Even if the risk of re-offending is small it is not a risk the Australian community should be exposed to and weighs against revocation.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)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 immigration status…
It is clear from the facts set out above that the applicant has a very long history of offending. His offending began within 5 years of his arrival in Australia and his offending of one sort or another continued for most of his time in Australia.
The drug offence for which the applicant was incarcerated in 1974 was a serious drug offence. The seriousness of the crime is reflected in the sentence which was imposed on the applicant (8 years with a non-parole period of 4 years and 6 months).
It is also clear that the applicant has little or no respect for lawful authority. With the exception of a period in the late 1980’s and 1990’s he was consistently involved in criminality of one sort or another. This is demonstrated by his early re-offending in 1980 after being released from prison the first time, his stealing offences in the 1980’s, his drug possession convictions in 2000 and 2008, his association with drug users throughout the 2000s, the storing of drug equipment and chemicals on behalf of other criminals from around the year 2000, his personal use of drugs in this period, his association with drug users and manufacturers uncovered by police in 2006, and his arrest and subsequent conviction for very serious drug manufacture and drug supply offences in 2009.
It was these convictions which landed him in prison and brought about the cancellation of his visa. The custodial sentence is not a one-off event but the culmination of a pattern of behaviour which was evident in the applicant’s life throughout most of the 1970’s, the first half of the 1980’s and for the entire period in which he was out of prison this century.
In assessing the offending and serious conduct the following should be noted. The court imposed a 16 year head sentence for the applicant’s conduct in 2011 which makes clear that the offending is very serious. The offence came at the end of a series of offences of increasing seriousness. When his career of criminality is looked at as a whole, the cumulative effect of his various drug convictions gives the clear impression that the applicant is a person with long involvement and experience in drug supply and distribution.
I accept the respondent’s submission about the seriousness of drug offences and the harm which they cause to the Australian community. It is important for the Australian community to be protected from criminals like the applicant. The applicant’s submission that his crimes should not be regarded as so serious because he did not intend to harm anyone in undertaking his criminal activities[77] demonstrates a disturbing lack of insight on his part. This lack of insight is particularly remarkable given that he associates with people whose own lives and the lives of their children (including his own) have been seriously damaged by their involvement with drugs. The fact that the applicant has a long history of making and distributing these harmful products and yet pretends that his life philosophy is to show people kindness[78] indicates a fundamental lack of appreciation of the harm he has caused and the damaging results of the choices he has made.
[77] G13 folio 97.
[78] G6 folio 51.
Accordingly I am satisfied that the applicant’s past conduct should be regarded as very serious indeed and weighs heavily against him when considering the protection of the Australian community criterion.
In considering this criterion the Direction directs me to examine whether the non-citizen has re-offended since being formally warned, in writing, about the consequences of further offending in terms of that non-citizen’s migration status.[79] How this factor should be applied in the present case is a difficult question. Consideration was given to deporting the applicant while he was serving his first sentence[80] and again when he was sentenced in 1980. However it appears that in June 1979 the applicant was advised that he was ‘no longer liable to deportation and, consequently, no further action in that respect will be taken by the Department’.[81] In circumstances where the applicant received this advice and was not deported after his second period of imprisonment (despite the recommendation of the sentencing judge)[82] it appears to be quite possible that the applicant was unaware of his risk of deportation after this time. Accordingly, I am not prepared to regard this as an aggravating factor.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
[79] The Direction, paragraph 13.1.1(1)(h).
[80] Exhibit R2 – p 25.
[81] G16 folio 109.
[82] G3 folio 28.
Paragraph 13.1.2(1) of the Direction provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(1)(a) requires the Tribunal to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(1)(b) requires the Tribunal to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Any assessment of the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct, can be properly informed by the nature of his offending apparent in his criminal history to date.

Given the applicant’s offending history, it is likely that if the applicant engaged in criminal conduct in the future, it would take the form of manufacturing and distributing addictive illicit drugs. As the sentencing judge noted in relation to the applicant’s most recent offence, as a ‘consequence of his activities large quantities of an addictive drug no doubt made their way to mainly young people’. If he were to re-offend, the same harm would befall the Australian community.
The respondent submits, and I accept, that the harm to the Australian community that would result from the applicant engaging in the manufacture and distribution of drugs would include:
(a)Physical injury;
(b)Chronic conditions and preventable diseases;
(c)Mental health problems;
(d)Road trauma;
(e)Violence and other crimes;
(f)Unhealthy childhood development and trauma and intergenerational trauma;
(g)Contribution to domestic and family violence; and
(h)Child protection issues; and child/family wellbeing issues.[83]
[83] Statement of Facts Issues and Contentions citing The National Drug Strategy 2017-2026.
I am satisfied that any re-offending by the applicant would result in significant harm to the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In light of the strong conclusions about the seriousness of the applicant’s past offending and the harm which would accrue to the Australian community if it were repeated, it is important to closely examine the likelihood of the applicant re-offending.
The applicant’s long history of involvement with drugs and his history of disregard for the law suggest that if the applicant were released and re-associated with the criminals and drug users with which he has such a strong affinity, there is a very strong likelihood that the applicant will engage in the kind of criminal and serious conduct which has got him into trouble to date. The applicant suggests that there is no chance that he will re-offend.[84]
[84] G6 folio 51.
If it were the case that the applicant was to be released from prison and left to his own devices I would reject such a submission out of hand. The applicant gave every sign in the witness box of being utterly unreformed. He continuously minimised his own involvement in each of the crimes he had committed and was clearly concerned not to implicate any of his former criminal associates. Following his evidence I had no confidence that he had any level of insight into his own offending. If he were released in an un-restricted way I have no confidence that he would change his ways.
In 1980 his parole officer described the applicant’s behaviour as ‘suggesting a deeper involvement with drugs than he is prepared to admit’. I was left with the same impression following his evidence before the Tribunal.
In these circumstances I would normally conclude that the risk of the applicant re-offending is high. However two submissions which were made on the applicant’s behalf have led me to significantly downgrade my assessment of whether the applicant is likely to re-offend and to find instead that it is most unlikely that the applicant will re-offend.
The first relates to the fact that the applicant will not be released without restriction but will, if he is released between now and the end of 2025, will be released on parole.
While on parole, as the applicant points out, he will be subject to supervision of his behaviour and associations including drug and alcohol testing.
The applicant will be subject to this supervision upon release until December 2025 by which time he will be 75 years old. The fact of parole supervision for this period diminishes very significantly in my assessment the likelihood that the applicant will re-offend, notwithstanding his entrenched inclinations. If he were to return to drug use for example it is likely to be detected and this may be sufficient to revoke his parole and return him to prison. The return to a custodial institution would again trigger the obligation on the part of the Minister to cancel his visa under s 501(3A) and would be very likely to result in his deportation. This creates significant incentives for the applicant to desist from even minor criminal conduct and provides me with a significant amount of re-assurance that if the applicant begins to drift back towards criminality, it will be detected quickly and the Australian community will be protected by re-incarceration of the applicant and probably deportation.
The other submission which I accept and which impacts significantly on the likelihood of the applicant re-offending is the close involvement of his adult children in the circumstances of his release. In her letter of support Ms N.L freely acknowledges that close family links were not sufficient to prevent the applicant’s offending in the past but, as she notes in her letter of support filed with the Tribunal,[85] the applicant’s family members and all of his children were entirely ignorant of his criminal activity and criminal history prior to his 2009 arrest. The applicant’s daughter submits that the fact that the applicant’s close family now know about his criminality has significance for two reasons:
(a)Being aware of his past criminality, the family members can now identify any new signs of a return to criminality. They can thus confront and prevent his reinvolvement in any criminal activity to the best of their abilities. Given the significance of family to the applicant and the fact that his children were the only relations that have consistently visited him during his incarceration, this is likely to have a significant influence on the applicant’s decision making and behaviour; and
(b)The applicant’s children are also adults now and can help the applicant with his financial constraints and concerns.
[85] Exhibit A2.
I formed a very high opinion of the applicant’s two adult children who were deeply involved with their father’s predicament and appeared determined to assist him to avoid the criminality in which he had involved himself in the past. As a consequence, I have formed the view that notwithstanding the applicant’s generally weak character and poor judgement, the circumstances are such that the risk of re-offending is low as a consequence of family support, the NSW parole system and the applicant’s advanced age upon expiry of his parole.
Conclusion: Primary Consideration A
As noted above, the applicant’s offending is very serious and I have little confidence that he would, unassisted, avoid involvement in criminal conduct relating to the manufacture and distribution of prohibited drugs. However, the applicant will be subject to parole supervision for a period of up to six years (depending on when he is released) and will be assisted in avoiding criminality by the close involvement of his adult children in his life. If he makes it through his parole period the applicant will be 75 years old before he has unrestricted liberty and if he has avoided criminality to that point I consider it unlikely that he will engage in it after his parole period expires.
The nature and seriousness of his past offending weighs heavily against any decision to revoke the cancellation. If I was satisfied that there was a significant risk that he would re-offend this factor would weigh very heavily against revoking the visa cancellation. However, I am satisfied that the risk that the applicant will be in a position to commit or assist in the commission of serious crimes like manufacturing and distributing drugs upon release is extremely low. His parole conditions should ensure that. I am also satisfied that the risk of the applicant committing even small crimes like drug use or stealing is low while he remains on parole. I am also satisfied that if he does commit even small crimes, he is likely to be returned to custody with a high likelihood of deportation.

In these circumstances while deportation would provide the Australian community with certain protection from further re-offending by the applicant, if the applicant’s visa cancellation is revoked there are significant protections in place which reduce very significantly the likelihood of the applicant re-offending, increase the likelihood of detection of re-offending and provide for measures to be taken in response to the applicant re-offending which protect the Australian community
Consequently, primary Consideration A weighs in favour of non-revocation but not strongly.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a minor child who may be affected by the cancellation of the applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors comprise:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There are four children whose interests the Tribunal must have regard to in the applicant’s case, namely I.M, M.L, J.B and his granddaughter.
Submissions
The applicant’s submissions in relation to the minor children are as follows:
(a)I.M and M.L would benefit from their father’s positive influence in their lives;
(b)P.R, who is M.L’s and J.B’s guardian would benefit from having a parent to assist in the care of the children which would benefit M.L both directly, in terms of actual support, and indirectly by relieving the stress that P.R is under;
(c)I.M would benefit from having additional care and support from a parent. She will benefit by being able to interact with him;
(d)M.L was distraught on hearing that the applicant may be deported;[86] and
(e)M.L is having difficulties at the moment and the applicant’s patience and compassion may have a positive effect if he is present in Australia to play a bigger role in her life.
[86] G6 folio 48.
The respondent’s submissions in relation to the minor children are as follows:
(a)In relation to I.M, the applicant was not physically involved in her upbringing. He has visited her from time to time but has not done that for 10 years. If the applicant is deported any support could be given by telephone contact from Malaysia;
(b)In relation to M.L, there is no parental relationship. M.L’s grandmother has that responsibility and support can be given to her via telephone or Skype from Malaysia. It is however still probably in M.L’s best interests that the applicant remain in Australia;
(c)In relation to J.B, the applicant’s involvement has been minimal but it might be in his best interests for the applicant to remain in Australia; and
(d)In relation to the applicant’s granddaughter, it is conceded that it is in the child’s best interests for the applicant to remain in Australia but given the nature of the relationship it should not be accorded much weight.
IM
I.M is the applicant’s biological child.
She was born in Queensland. She was born with severe brain damage as a consequence of her mother’s attempt to induce an abortion using alcohol. I.M’s legal guardians are her aunt and her aunt’s husband. The applicant has never lived in the same city as IM but has taken an interest in her welfare. Prior to his incarceration he would fly to Queensland to attend meetings with child welfare authorities. On these occasions he would stay with IM’s guardians. He has had discussions with IM’s guardians about IM’s welfare.
Since the applicant has been incarcerated his involvement has inevitably been slight. He has had some limited contact with her from inside prison but neither IM nor her older sister is aware that the applicant is in prison. The applicant has a continued interest in his daughter’s progress.
However, the applicant’s relationship with I.M is characterised by long periods of absence and only limited contact. There does not appear to be much prospect of that changing if the applicant is returned to the community. The evidence indicates that I.M lives in another state under the care of guardians. When the applicant is released there is no suggestion that those guardianship arrangements will change. Accordingly, if he remains in Australia the applicant is unlikely to take up a significant role in I.M’s life.
Given his history, it is not the case that the applicant is likely to play a positive role in I.M’s life, but the Tribunal has not seen any evidence which suggests that the applicant’s conduct has had any negative impact on I.M.
As I.M has been separated from the applicant for extended periods previously, it is unlikely that the applicant’s removal from Australia would have any immediate effect on I.M. However, the Tribunal does not discount the significance of separating a child from their biological father. That concern is however ameliorated significantly by the fact that I.M is looked after by long term guardians who have been her primary carer since she was very young and physical contact with her father has been extremely limited since she was born.[87]
[87] See The Direction, paragraph 13.2(4)(e).
There is no evidence as to what I.M’s view of the matter is. There is also no suggestion that the applicant has abused or neglected I.M or inflicted trauma on I.M as a result of his conduct.[88]
[88] See The Direction, paragraph 13.2(4)(g) and (h).
Revocation would be in I.M’s best interests, in the sense that it is, broadly speaking, preferable for her to have physical access to her biological father. But a decision not to revoke is unlikely to harm her interests in any significant way.
M.L
M.L is the daughter of Ms R.R and the applicant. M.L was born on 31 May 2005. She is currently 14. The evidence indicates that Ms R.R has a mental illness and assisted the applicant to produce the drugs which led to his conviction and current incarceration. M.L is currently being cared for by her grandmother, Ms P.R. The evidence suggests that the applicant has a good relationship with Ms P.R and that if he was released he is likely to resume some form of relationship with M.L who already associates with his grown up children.
However, it is important to emphasise that the applicant has not played a traditional parental role in relation to M.L. He may have lived with her for a brief period when she was an infant but has not lived with her since. On his own evidence, he would care for her “on and off” when her mother was busy. But that appears to be the most significant involvement the applicant had. Ultimately though neither Ms R.R nor the applicant appear to have been capable of caring for M.L. Given the events described in police reports in 2006, the fact that both were using drugs and associating with drug users and criminals is the likely cause of their inadequacy as parents. As a consequence M.L’s grandmother has ended up providing her with permanent care and has done so since 2006.[89]
[89] Applicant’s oral evidence.
The nature of the relationship is not really a parental one and the contact between M.L and the applicant has been limited, particularly so since the applicant was incarcerated.
There is some prospect that if the applicant is released he could play a positive role in the future. The evidence establishes that the applicant was an extremely good father to his oldest children and played a very positive role in their upbringing. It is possible that he could do the same in relation to M.L particularly at this point in time when there is evidence that others with responsibility for caring for her are experiencing significant stress as a consequence of M.L’s behaviour.
However, there is a risk that the applicant’s permissive attitude to drugs and criminality will have a negative influence on his daughter. He claimed in his evidence not to have such views, but the evidence of such an attitude on his part is strong.[90] There is a risk that this will have a negative impact on M.L.
[90] G13 folio 97 coupled with his long criminal history.
There is unlikely to be a significant effect on M.L as a consequence of the separation arising from the applicant’s removal to Malaysia. The applicant has been separated from M.L since his incarceration in 2009 and contact since then has necessarily been limited. Contact of a similar quality could be maintained using modern communications in Malaysia.
M.L’s grandmother already fulfils the parental role.
The evidence suggest that M.L ‘was most distraught’ when she found out that the applicant may be deported.[91] Consequently, it is reasonable to infer that she would be in favour of her father remaining in Australia.
[91] G6 folio 48.
There is no evidence to suggest that the applicant neglected or abused M.L nor that she suffered trauma as a result of his conduct.
Given the biological connection between the applicant and M.L and the applicant’s positive role in the lives of his older children, I am satisfied that it is in her best interests for the applicant to remain in Australia but I make this finding with some reservations having regard to his permissive attitude to drugs.
J.B
J.B is the son of Ms R.R and T.B. After the death of T.B, the applicant lived with J.B and his mother for 3 months following the birth of M.L.[92] He has not lived with him since. The level of the applicant’s involvement in the life of J.B appears very minor. On the evidence before the Tribunal there is no basis for a finding that the best interests of J.B would be affected if the applicant were returned to Malaysia.
The applicant’s granddaughter
The applicant’s oldest daughter Ms N had a child recently. As the applicant is in prison he has not had much of a relationship with his granddaughter. The evidence indicates that they have met on two or three occasions.[93] While it is preferable for a child to have a relationship with their grandparents, this child’s interests would not be significantly affected if the applicant were removed to Malaysia and contact could be maintained by visits and using technology like Skype.
[92] Applicant’s oral evidence.
[93] Exhibit A2 p3.
Conclusion: Primary Consideration B
As the applicant’s relationship with his biological minor children has been characterised by significant periods of limited or no contact, the Tribunal is satisfied that removal of the applicant from Australia to Malaysia would not have a significant negative impact on their interests.
In relation to I.M given the low level of past contact and the fact that she is well cared for and living in Brisbane there is virtually no impact on her interests as a consequence of the applicant being removed from Australia. In relation to M.L I am satisfied that it would be in her best interests for the applicant to remain in Australia. The impact of removal of the applicant to Malaysia on J.B and the applicant’s granddaughter do not alter that assessment either way given the very slight nature of the connection between them and the applicant.
In my assessment, Primary Consideration B weighs slightly in favour of revocation.
Primary Consideration C: Expectations of the Australian Community
The final primary consideration is the expectations of the Australian community.
In approaching this consideration, the Tribunal notes the following matters which are relevant to applying this consideration to the applicant.
(a)The expectations of the Australian Community are not matters for evidence. They are expressed normatively and the expectations are what the Government says they are, even though in actual fact, if they were ascertainable, community expectations might be quite different;[94]
(b)Decision makers are bound to have due regard to the Government’s view regarding community values, standards and expectations as set out in the Direction;[95]
(c)The expectations of the Australian community are conclusively expressed (for present purposes) in clause 13.3 of the Direction;[96]
(d)There are a spectrum of ways of reading clause 13.3 and the precise way of expressing the expectation of the Australian community as discernible from clause 13.3 is one on which reasonable minds may differ. In its strongest form, the clause can be understood as expressing a deemed community expectation that all person who have committed serious criminal offences giving rise to character concerns should not have their visa cancellations revoked.[97] A more flexible reading suggests that the Australian community has three relevant expectations;
(i)Non-citizens will obey Australian laws when in Australia;
(ii)It may be appropriate to not revoke the visa cancellation of a non-citizen where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere; and
(iii)In a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa (or continue to hold a visa);[98]
[94] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [91] per Stewart J.
[95] See, for example the Direction, paragraph 6.2 and 6.3; DKXY v Minister for Home Affairs [2019] FCA 495 at [31].
[96] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] per Charlesworth J and at [94] per Stewart J (although noting that those judgments deal with clause 11.3 of the Direction which applies to visa applicants. Paragraph 13.3 is not materially different except that it applies to revocation requests.
[97] To adapt the words of Justice Charlesworth in FYBR at [75] to present circumstances.
[98] To adapt the words of Justice Stewart in FYBR at [100] to the present circumstances.
Whichever expression of community expectations is accepted, in the present circumstances, it weighs against revocation of the cancellation. The applicant has a long history of non-compliance with the community’s expectation that visa holders will obey the law. The applicant has breached the expectation in the past and the past breaches are serious. There is a chance he will not obey the law if he remains in Australia. Accordingly, given that the applicant has repeatedly failed to comply with the law the expectation of the Australian community is that his visa cancellation will not be revoked. I must have due regard to that expectation in making my decision.
Other Considerations
It is necessary to consider the Other Considerations listed at paragraph 14(1) of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I will address each in turn.
(a) International non-refoulement obligations
In broad terms a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of types of harm identified in a number of international conventions.
The applicant is aware that Malaysia has the death penalty in relation to drug trafficking offences and is concerned that if he is returned to Malaysia, he may be subject to adverse treatment for drug related crimes he has committed in Australia. His concern is expressed in the following terms:
…we are even more concerned that Malaysia upholds capital punishment for drug related offences and are gravely concerned for [the applicant’s] wellbeing. We are not literate in law, let alone international law, but seem to understand that he may be interviewed and placed in detention without terms when he arrives there. This is concerning and we are trying to find out how likely this is.[99]
[99] Exhibit A2.
There is no evidence before me which suggests that this concern is well founded. The respondent has provided a 2009 report from the Research & Information Services Section of the Refugee Review Tribunal (as it then was) which includes information which causes me to conclude that it is most unlikely that if the applicant is returned to Malaysia that he will be prosecuted in relation any criminal offence committed in Australia. I accept the respondent’s submission that the risk of the applicant facing a ‘double jeopardy’ type conviction in Malaysia for his offences in Australia is remote, and does not give rise to any non-refoulement considerations.
In the absence of any evidence about the likelihood or nature of some other form of detention taking place when the applicant is returned to Malaysia, I do not consider that Australia’s non-refoulement obligations are engaged in this matter.
(b) Strength, nature and duration of ties
This criterion is difficult to apply in the applicant’s case. The principles in the Direction relevantly provide:
Australia has a low tolerance of any criminal or other serious conduct by people 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.
The applicant has been in Australia since 1969, arriving at the age of 19 and has never left. He has no family back in Malaysia. All of his family ties are in Australia and they are significant. His first conviction was just over 5 years after he arrived in Australia and it was for a serious crime. He did however ‘come good’ in the mid-1980’s and there was an extended period of around 15 years in which he contributed positively to the Australian community. As a consequence the applicant has very close ties to his adult children including his son Mr N who suffers from a serious medical condition which confines him to a wheelchair.
There is strong evidence before the Tribunal of the good work that the applicant did in raising his now adult children. Both Ms N and Mr N share a strong bond with their father as a consequence of the hard work he put in in raising them. M.L’s guardian P.R comments very favourably on his capacities as a father. His nieces have also been prepared to provide letters of support and clearly have fond memories of their uncle. The family of the applicant’s first wife have also written letters of support for the applicant indicating how much he contributed to their family.

The applicant was also heavily involved in his son’s school. The material before the Tribunal indicates that he attended P&C meetings at his son’s school for 3 years and helped to raise funds for the school. He volunteered to help build a ramp at the school.
A number of witnesses noted that he was generous and kind and looked out for others.
In applying the Direction[100] I give less weight to the fact that the applicant has been in Australia for more than 50 years in light of his conviction in 1974. However the applicant’s time in Australia constitutes his entire adult life. He has nothing which ties him to Malaysia. Every important link to a community that the applicant has is to someone in Australia. In applying the Direction I consider that the weight that should be given to this criterion is enhanced by the period in the mid-1980’s to the end of the 1990’s where the applicant contributed positively to the Australian community.
[100] See in particular paragraphs 14.2(1)(a)(i) and (ii).
On the whole this factor weighs significantly in the applicant’s favour.
(c) Impact on Australian business interests
This consideration is not relevant in determining this application.
(d) Impact on victims
There is no evidence on which I could make findings in relation to this criterion.
(e) Extent of impediments if removed
Paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
The Tribunal must take into account the criteria set out in paragraphs 14.5(1)(a),(b) and (c) which are:
(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.
Submissions
The applicant submits that if he were returned to Malaysia he would be a ‘destitute, lonely old man because I have nobody and forgotten all the lingo’s (sic) and customs back in Malaysia’.[101] The applicant’s eldest daughter also claims that the applicant has no financial means, no digital literacy, no family or social ties, and no knowledge or experience of Malaysia.[102] I accept that this is the case.
[101] G6 folio 53.
[102] Exhibit R4.
The respondent accepts that the applicant may face impediments in establishing himself and maintaining basic living standards taking account of his age and lengthy period of absence. However, the applicant submits that this should be weighed against the applicant having been able to obtain an offer of employment in Australia and that Malaysia is classified as an upper middle-income economy with an unemployment rate of 3.5% and less than 1 per cent of households living below the poverty line. The respondent submits that the applicant would have an opportunity to obtain employment in Malaysia such that he can maintain basic living standards.
The respondent also noted that the applicant had sought to improve his Mandarin language skills while in prison, and submitted that this suggested that there will not be substantial language barriers on his return.
At the Tribunal’s prompting the respondent also provided evidence on whether the applicant would be entitled to any age pension on his return to Malaysia and the evidence suggests that he may be. The evidence on this issue is discussed further below.
Consideration
This part of the Direction, focuses the Tribunal’s attention on:
(a) Whether there are impediments to the applicant establishing himself in Malaysia; and
(b) Whether there are impediments to the applicant maintaining basic living standards (in the context of what is generally available to other citizens of Malaysia).
The two questions are related. Paragraph (a) above refers to the applicant’s ability to set up a new life in Malaysia and in my assessment must include consideration of his capacity to find accommodation, a source of income, some form of social contact, access to medical care and other basic necessities for a permanent life. Paragraph (b) above refers to the applicant’s ability to retain accommodation, feed and clothe himself and provide the basics for subsistence on an ongoing basis. The standard that should be applied in assessing what is regarded as ‘basic’ is by reference to what is generally available to other citizens of Malaysia. It is not relevant that the standard which the applicant may be able to achieve is significantly below what would be available to the applicant if he were to remain in Australia.
In considering these questions the Tribunal is to take 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 him in Malaysia.
The applicant’s age is a clear impediment to him establishing himself in Malaysia. A 70 year old man with a long criminal record is will have very significant difficulties finding accommodation and employment. The respondent submits that because the applicant has been able to obtain an offer of employment in Australia that he is likely to obtain an offer of employment in Malaysia. I reject that submission. The reason the applicant has an offer of employment in Australia is that he has a relationship with the men who own the company dating back many years.[103] In Malaysia, the applicant has no connections at all which will facilitate his return to the workforce. I am satisfied that the applicant’s age means that it is most unlikely that he will be able to find any work at all when he returns to Malaysia. In addition, the applicant’s age will also create other difficulties for him in establishing even a limited social network. The likelihood is that the applicant will end up, to use his words, ‘a destitute, lonely old man’.
[103] G10 folio 84.
The Tribunal is satisfied that there are also substantive language barriers which will impede the applicant from establishing himself and maintaining basic living standards in Malaysia. He lived in that country until he was 19 years of age but there is no evidence that he speaks Malay which is the official language of Malaysia, and only limited evidence that he speaks Mandarin, the language used by Malays of Chinese origin. In his words he has ‘forgotten all the lingos’.[104] The respondent suggests that there is evidence that the applicant sought to improve and regain his Chinese language skills while in prison and this suggests that there will be no substantial language barriers on the applicant’s return. I reject that submission. The evidence relied upon by the respondent is a request by the applicant for permission to buy an “English-Chinese Oxford Picture Dictionary”. The applicant said on the form that he needed the dictionary to “improve & regain my Mandarin”. The purchase of a picture dictionary (rather than a more advanced text) suggests that the applicant’s skill in Mandarin (which is a minority language in Malaysia) has significantly deteriorated. The purchase of a picture dictionary does not satisfy me that I should not accept the applicant’s evidence that he has forgotten the languages or that I could conclude that “there will not be substantial language barriers to return”. In my assessment, the applicant’s lack of language skills is likely to significantly impede his capacity to find work, find accommodation and meet friends.
[104] G6 folio 53.
There is evidence which suggests that the applicant might be entitled to some form of economic support if he is returned to Malaysia. A United Nations report entitled Social Protection in Malaysia indicates that if the applicant were destitute in Malaysia, because of his age, he would be entitled to a RMB 200 per month pension. This equates to AUD835 per year.[105] The report was prepared in 2009 and so it is reasonable to expect that there has been some increase in that amount since the report was prepared.
[105] Exhibit R3 p 4-5.
In my assessment it is very likely that if the applicant is returned to Malaysia, an aged pension is likely to be his only source of income. In my assessment the applicant will not be able to find work and he gave evidence that he has no assets.[106] This means that on his return to Malaysia the applicant will need to live on around $3 per day. With such limited financial support it is my assessment that the applicant’s life on his return to Malaysia will be characterised by grinding poverty. Malaysia is classified as an upper middle-income economy[107] so by the standards of what is generally available to other citizens, the applicant would find himself enjoying living standards far below what is usual in Malaysia.
[106] Applicant’s oral evidence.
[107] Respondent’s statement of facts issues and contentions [74].
Accordingly there are very significant impediments to the applicant establishing himself in Malaysia and maintaining basic living standards consequently this factor weighs very heavily in the applicant’s favour
Summary of findings – Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant.
·Strength nature and duration of ties: in favour of revocation.
·Impact on Australian business interests: not relevant.
·Impact on victims: not relevant.
·Extent of impediments if removed: weighs very heavily in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the applicant’s visa: either the applicant must be found to pass the character test, or the Tribunal must be satisfied that there is another reason why the original decision should be revoked. In exercising the power, the Tribunal must take into account the considerations in Part C of the directions. As I have noted above, the applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am satisfied that there is another reason for the Tribunal to revoke the cancellation of the applicant’s visa.
In the end, the strength and depth of the applicant’s ties to the Australian community and the enormous impediments which he faces to establishing any kind of life back in Malaysia outweigh the need to protect the Australian community from what I consider to be the very small risk that he will re-offend. I reach this conclusion conscious that ‘Other considerations’ under the Direction have outweighed counter-balancing primary considerations.
In reaching this view I also recognise that my assessment that the risk of the applicant re-offending is low depends upon two things. First, the effective operation of the parole system in ensuring that the applicant is supervised and tested to ensure that he does not return to a life of crime, and second, that his family will closely supervise his activities now that they are aware of his propensity to commit crime.
If these systems were to fail and the applicant were to be returned to prison to serve out the remainder of his sentence, that would significantly re-balance any assessment under the guidelines and almost certainly produce a different outcome for the applicant if his visa were cancelled again. I hope the applicant seizes the opportunity this decision gives him to live out his life with his family as a productive and contributing member of the Australian community.
DECISION
The decision of the Respondent made on 12 August 2019, being a decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class BF-C Transitional (Permanent) visa under s 501CA(4) of the Migration Act 1958 (Cth), is set aside.
In substitution, the decision to cancel the Applicant’s Class BF-C Transitional (Permanent) visa is revoked.

I certify that the preceding 184 (one hundred and eighty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan.

.........................[sgd].............................................
Associate
Dated: 8 November 2019

Date(s) of hearing:

24 and 25 October 2019

Applicant’s representative:

In person with his son and daughter

Advocate for the Respondent:

Ms Dale Watson

Solicitors for the Respondent:

Australian Government Solicitor

[2019] AATA 4892

4 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Date(s) of hearing:	24 and 25 October 2019
Applicant’s representative:	In person with his son and daughter
Advocate for the Respondent:	Ms Dale Watson
Solicitors for the Respondent:	Australian Government Solicitor