Cooley and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 4561

Cooley and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4561 (10 November 2020)
Division:GENERAL DIVISION
File Number(s):2020/4990
Re:Gary Cooley
APPLICANT

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

WRITTEN REASONS
Tribunal:Senior Member B J Illingworth
Date:10 November 2020
Place:Adelaide

The Tribunal sets aside the reviewable decision. In substitution, the Tribunal decides that the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa be revoked.
............................[sgnd]..........................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 374 ALR 601.
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs.
SCJD v Minister for Home Affairs [2018] AATA 4020.
Viane v Minister for Immigration and Border Protection [2018] FCA 3.
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466.
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018.
REASONS FOR DECISION
Senior Member B J Illingworth
10 November 2020
INTRODUCTION

This matter relates to an application for review filed by Mr Cooley (“the Applicant”) on 18 August 2020 for a review of a decision by a delegate of the Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (“the Respondent”) dated 13 August 2020, not to revoke a decision to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return visa (“the visa”) made under s 501 (3A) of the Migration Act 1958 (“the Act”).
At the hearing the Applicant appeared in person and was represented by migration agent Dr Haines. The Respondent was represented by Mr Palfrey of HWL Ebsworth Lawyers.
BACKGROUND
The Applicant was born in England in 1973 and is a citizen of the United Kingdom. He is 47 years of age. His parents and older brother aged 49 years still reside in England.
The Applicant left school aged 16 and joined the British Royal Marines. He was medically discharged after a knee injury during basic training. He then became a kayak instructor, advancing to senior instructor, which allowed him to teach white water rafting. He taught in Europe and earned qualifications in expedition leadership[1]. In evidence he said that he worked in France for 3 years. He spent about 9 months of each year in France supervising kayaking expeditions and the balance of each year in England driving lorries.
[1] G8, pages 89 – 93.
The Applicant travelled to Australia in 1996 on a Temporary Working Holiday visa. He met his future wife KC. The Applicant returned to England and was joined by KC. They were engaged in 1998. In 1999 the Applicant moved to Australia and in November of that year he and KC married. From that time, the Applicant has lived predominantly in Australia.
The Applicant worked in various jobs, eventually becoming a licensed truck driver. He pursued that career for a number of years. He has always been gainfully employed.
The Applicant’s son NC was born in 2003. In his written submissions and in evidence the Applicant detailed a close and loving relationship with his son. He was a dedicated parent and, when home from work commitments, was actively involved in NC’s care and education.
The Applicant’s daughter IC was born in 2006 and, similarly, the Applicant enjoyed a close and loving relationship with her, was a dedicated parent and actively involved in her care and education.
The Applicant’s marriage became strained not long after the birth of IC. He and his wife attended counselling with some improvement in the marriage but not for long. The Applicant said he became more and more depressed due to the breakdown in the marital relationship and, at the invitation of a friend, he smoked ice for the first time which quickly turned into an addiction. This addiction led to his criminal offences.
Offender History
The Applicant was arrested on 22 November 2013, charged with offences relating to a business he and his co-offender established on the darknet for the importation and distribution of drugs.
The Applicant was granted bail in November 2013 and, until he entered into custody pending sentence on 4 February 2016, he worked and did not commit any further offences. He said in evidence that when released on bail he immediately obtained employment working as a truck driver.
The Applicant and his co-offender appeared before the District Court and were sentenced to imprisonment on 23 May 2016. He pleaded guilty to 30 drug offences committed in a six-week period between 1 August 2013 and 22 November 2013.
The role of the Applicant in the business was the subject of evidence before the Learned Sentencing Judge. The Applicant said he was employed by his co-offender. In the Sentencing Remarks dated 23 May 2016, the Learned Sentencing Judge rejected the Applicant’s submission. He found the Applicant was “as much involved” as his co-offender in all aspects of their drug trafficking operation. His Honour also found that the offending was not for a closed period and it was intended to operate for as long as it continued to be successful. That success was to be measured first, by giving the offenders access to drugs for their own use, and second, to make significant profits. Cash flow documents indicated an approximate annual revenue from drug dealing of over $700,000.00 per annum.
The Learned Sentencing Judge sentenced the Applicant on the basis that he was addicted to drugs which partly led to his offending. The sentence imposed was the subject of an appeal to the Court of Criminal Appeal. On appeal the Applicant did not challenge the findings of fact as to his role in the business.
On appeal the Applicant’s sentence was reduced to a head sentence of 11 years and four months imprisonment, with a non-parole period of six years and four months commencing from 4 February 2016.[2]
Justice Lovell summarised the offences as follows[3]:
The appellants sourced illicit drugs from overseas – primarily India, the Netherlands and Belgium – and purchased them via the market places of Black Market Rebooted (BMR) and Sheep (SHP) which are hosted on the darknet. They then on sold the drugs to consumers in Australia through their own stall sent up on BMR and SHP called AUVip. All transactions were conducted in bitcoins.
His Honour later said[4]:
Drugs the appellants imported were first sent to re-mailing centres in either the USA, UK or Ireland where the packages were repackaged, divided into smaller packets and then re-sent to the appellants in Australia. The purpose of this process was to decrease the likelihood of detection by having the parcels arriving from less suspicious locations and with smaller quantities of drugs.
The appellants had established false identities and created false names, documentation, passports and scanned signatures. Applications in the false names were addressed to the United States Postal Service for the appointment of agents to collect mail addressed to Lucas Robin. Lucas Robin did not exist. An illegitimate passport in the name of Lucas Robin containing a stock photograph for sale on the Internet was utilised by the appellants as well as a false United Kingdom passport in the name of Gareth Cooper; this contained a photograph of Mr Cooley.
[2] This was the date the Applicant asked to be taken into custody having had time to sort out his affairs and make arrangements for his family.
[3] G5, page 54 at [15].
[4] G5, page 55 at [20] – [21].
The parcels addressed to the fictitious Lucas Robin were intercepted by Australia Post. Police were informed. On 22 November 2013 when the Applicant attended the post office to collect the parcels he was arrested, and the parcels were seized. His house and car were searched. Spreadsheets detailing drug sales, cash, digital scales and methylamphetamine were seized.
Justice Lovell said the Applicant and his co-offender “should be classified as mid-level dealers, trading in a wide range of drugs with profit as the main focus of the business.[5]”
[5] G5, page 64 at [76].
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Pursuant to s 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of the Minister, may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; or
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the Original Decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant concedes that he does not pass the character test as he has been sentenced to a term of imprisonment of at least 12 months. Consequently, I am satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the original decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, the relevant direction is Ministerial Direction No 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No 65.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(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)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(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 that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 13(2) in Part C of the Direction provides the three primary considerations that the Tribunal must take into account, namely:
(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.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but not limited to):
(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.
The Tribunal will now address these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)The nature and the 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.
The Tribunal will address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction.
(1) The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that 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 subparagraph (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 migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …
The Applicant first travelled to Australia in 1996 and has generally lived in Australia since 1999. He has no other criminal convictions other than the offences giving rise to his visa cancellation. Whilst living in the community on bail pending sentence for over two years, he was employed and did not reoffend.

He had an offence arising out of a motor vehicle incident when on bail. He pleaded guilty to leaving the scene of an accident. He explained that his vehicle apparently came into contact with another vehicle. He did not realise. Neither car was damaged. The other driver felt he should have stopped. He pleaded guilty. I accept his evidence.
The Applicant says that he was, at the time of his offending, depressed due to the circumstances of his marriage. He had been depressed for 12 months prior to the offence. The offending occurred over a short six-week period in 2013.
The Learned Sentencing Judge said[6]:
“Your drug offending can be divided into three categories.
The first category comprises 14 counts which arise from the seizure of parcels found to contain illicit substances which had been acquired from suppliers on the darknet and were sourced from overseas.
The second category involves 11 counts arising from the sale and supply of illicit substances to customers in Australia who had purchased drugs through an Internet site AUVip. These purchasers received the substances via Express Post.
The third category comprises five counts concerning drugs and prescription medication seized when police arrested you. These were found in a tub in a spare room at your house, [of the co-accused].
[6] G4, page 23.
The Learned Sentencing Judge observed that the Applicant’s offending gave him access to drugs for his own use but also that he expected to make substantial financial profit.
It was further noted that upon arrest the Applicant was cooperative and spoke with police on a number of occasions. He gave police considerable assistance “in sorting through what AUVip was and how it conducted business[7]”. The Learned Sentencing Judge took into account the Applicant’s significant assistance to the authorities.
[7] G4, page 37.
The Court of Criminal Appeal in re-sentencing described the offending as sophisticated, difficult to detect and the motive for offending was largely profit driven. In the six-week period of offending the Applicant and his co-accused profited by a little over $100,000.00[8].
[8] G5, page 65 at [78] – [79].
Should the Applicant engage in similar criminal conduct in the future, the consequence of drug use to individuals, and the Australian community generally, will be potentially devastating. Drugs including methylamphetamine are insidious, addictive and ruin lives for consumers and their families often leading to the commission of criminal offending to support the consumers habit, as it did for the Applicant.
The offending occurred in a short period of six weeks but the estimated profit in that time was indicative of a considerable quantity of drug involved. Albeit motivated in part to source drugs to meet the offenders drug addiction as Justice Lovell observed, it was a sophisticated business; difficult to detect and profit driven.
Counsel for the Respondent asked the Applicant in cross-examination if he accepted responsibility for his offending. He said yes; that he made full and frank admissions to the police and that the investigating officers came to his house and asked about the operation. He said he was honest with the investigating officers.
When asked if he felt “hard done by” he said only by the duration of the sentence. His conviction was the first of its kind in Australia for darknet offending.
Further, in cross-examination the Applicant was referred to the Learned Sentencing Judge’s findings with respect to his involvement in the business. He was asked to explain His Honour’s remarks contained at G4 page 32, including reference to a Facebook comment attributed to the Applicant. The Applicant explained what he said was his role in the business, namely, that he was paid $1000 per week by his co-offender and was to receive 10% of the profit in bitcoin. It was that financial arrangement that was relevant to the Facebook entry and was a comment the Learned Sentencing Judge relied on in his findings of fact. He also said the co-offender wanted him to take over his role in the business because the co-offender was to travel overseas. He was therefore being taught how to decrypt communications. It took him six hours to manage his first decryption.
The Applicant said in response to counsel for the Respondent that he did not agree with His Honour’s comments; that his co-offender asserted they were equal in the business arrangement and blamed it all on him, which was inaccurate. He said in subsequent unrelated criminal proceedings his co-offender had been criticised as a witness by the Supreme Court who described him as a selfish self-obsessed liar.
When asked what he did take responsibility for, he said he was responsible for being involved in the business. His role was to collect drugs from the post office, unpack and repack and send the drugs out to customers. That, he said, was his role.
The Learned Sentencing Judge rejected the Applicant’s evidence. He found that the Applicant was as involved as his co-offender in every aspect of the operation of the business and was to receive a substantial share of the profits.
(2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It relevantly states:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Applicant’s offending occurred in a six-week period in 2013. While on bail for over two years, the Applicant did not reoffend.
The Applicant said marijuana had been part of his life from long-time. He first took amphetamine when aged about 39 years. He said he had now been clean for seven years.
However, whilst in Mobilong Prison it is reported by Mr BG, ACM, Manager Accommodation, Mobilong Prison whose report I will refer to later, that in September and December 2019 there were two incidents which led to the Applicant being “regressed” for three months, from his low security Ross Unit cottage accommodation to mainstream prison. The Tribunal asked the Applicant to explain those incidents.
He said the first transgression occurred when he passed a “dirty urine” test. He had received a letter from his wife saying that she wanted a divorce and had commenced another relationship. He was upset. A prisoner offered him a tablet which was a synthetic opioid. He was urine tested the next day and failed the test. The second is when he took some mushrooms from the kitchen without asking.
The Tribunal asked the Applicant, if he were to again receive bad news when in the community, how the Tribunal could be satisfied he would not transgress again. He said proving it will be difficult, but “the proof of the pudding is in the eating.” However, he has different coping skills with a more mature outlook on life. He accepts things cannot change, but he will be resilient in the future. In his training program with young prisoners, to which the Tribunal will also refer later, he has been given ideas and tools to assist him and has learned a lot from those young prisoners he supports. Further, in the courses that he has taken to assist him in training young prisoners, he too has been trained. The Respondent pressed this question in cross-examination. The Applicant said that this was an isolated incident. There are other occasions when he had received bad news where he did not react by taking an illicit substance, for example, being first sentenced to 14 ½ years’ imprisonment when his lawyer said he could expect a sentence of two years. Similarly, when he was re-sentenced by the Supreme Court or the recent passing of his grandmother. On those occasions he did not react by taking an illicit substance. His indiscretion was a moment of weakness and he believes he has the right coping skills not to do so in the future. Further, should he do so when released on parole, he would be immediately returned to prison and then be deported.
He agreed in cross-examination that his statement that he had been “clean” for seven years was not accurate. He said he had been clean of marijuana and amphetamine for 7 years.
Senior social worker Dorothy Hearne at Mobilong Prison in a report dated 18 August 2018[9], said that that when he commenced the sentence of imprisonment the Applicant was placed on the High Risk Assessment Team (“HRAT”), which is used for close monitoring of prisoners considered at high risk of suicide or self-harm. She has maintained regular contact with the Applicant thereafter and worked on areas to address the Applicant’s depression which gave rise to his substance abuse. She was initially seeing him two to three times a week which has now reduced to monthly sessions.
[9] G12, pages 104 – 105.
She described the Applicant as “having engaged to an exceptional level” and as “open and honest during counselling sessions.[10]” She opined that the Applicant has dealt with his depression and use of illicit drugs and developed “some very positive coping strategies to deal with stress and depression. [The Applicant] is on antidepressant medication, and has been stable on this medication for over 2 years now[11].” The Applicant was working seven days a week in the kitchen and not presenting with depressive symptomology. She further opined that the coping mechanisms the Applicant had developed “reduces his risk of relapsing into drug use[12].
[10] Ibid, page 104.
[11] Ibid, pages 104 – 105.
[12] Ibid, page 105.
The Applicant said, and the Tribunal accepts, that he was not diagnosed with depression until he was imprisoned. The Tribunal did not receive a report from a psychiatrist or psychologist but infers he must have been diagnosed with depression to be receiving antidepressant medication. He has now ceased that medication and believes that he has fully recovered.
The Tribunal received an undated communication from Mr Gelston, in relation to the Applicant, to which I have referred. He noted the Applicant was transferred to Mobilong Prison on 16 February 2016 as a remand prisoner. He progressed rapidly through the prison regime and was placed in cottage accommodation by August 2016. To achieve this, he had to meet stringent criteria based on sentence plan/program compliance, work ethic and commitment, good behaviour and support from all levels within Correctional Staff groups.
Mr Gelston said, “[h]e has maintained a generally high excellence work and performance history whilst serving his sentence at Mobilong and has traditionally been employed in positions of higher responsibility or trust than the average prisoner[13].” Mr Gelston said that the Applicant had committed only two breaches in custody which were in the nature of poor choice decisions, which he said, “is considered quite remarkable given the complex and numerous rules and regulations prisoners are expected to abide by.[14]” He described the Applicant as mature, respectful and an above average prisoner who had developed a good working relationship with both peers and staff.
[13] Exhibit G
[14] Ibid.
He said the Applicant was appointed to the Peer Support Program in October 2016 and remains in that role. He regularly assists his Case Management Coordinator and Offender Development Social Work team to assist with newly arrived prisoners identified as needing support to settle into and adapt to the prison environment. He is considered a valued member of the team and is also a facilitator in the ‘Local Straight Talk Program’. That program is directed to assist young offenders aged between 18 and 23 years and aims to reduce recidivist behaviour in young offenders. He provides peer support. He described the Applicant as having a solid family support unit on the outside.
The Tribunal asked the Applicant to explain the Peer Support Program and his role. He said that each program ran for three weeks, each with a group of up to 4 young prisoners under 23 years of age and serving a prison sentence for the first time. Those young prisoners come from a range of cultural backgrounds. There are other senior prisoners who play a role in the program. He was the most senior prisoner. It is directed to transition young prisoners into the prison system. Each week is as follows;
Week 1 – they talk about a number of subjects to help the young prisoner get through the system, incident and drama free;
Week 2 – the Applicant wrote two modules for this week’s training namely,
(a) ‘Think before you act’; which involves cognitive behaviour thinking. They put scenarios to the young prisoners, ask them how they would deal with the scenario, talk about their answers and the correct response. They require them to apply the learning to smaller day-to-day events within the prison system, so that the appropriate method of dealing with events becomes instinctive;
(b) ‘Happiness’; which explores feelings of happiness of each individual. This includes what makes them happy and he gave them the example of his own offending being linked to not being happy. They discuss what makes them happy and occasions when the young prisoner was happy, before going to jail. They reinforce that happiness is not material in nature, and family, friends, peers, respect and sport achievements give rise to happiness;
Week 3 – ‘Gratitude journal’; which requires young prisoners to maintain a gratitude journal on a daily basis. They write down things for which they are thankful, daily. They write separately the impediments to being thankful and then tear it out of the journal and destroy it; which is a psychological mechanism to destroy the impediments. They also take prisoners to Ross Unit Cottages which is a minimum-security area away from mainstream prison. Six prisoners reside in each cottage which has open gates and where prisoners do their own cooking.
The Applicant said that he had received training to provide him with skills to contribute to the training program, which included cognitive behaviour. This training has been of personal benefit to him, as has his engagement with young offenders in dealing with his own issues.
The Applicant said that he moved into Ross Unit Cottages after being imprisoned for six months and has remained there save for the two incidents requiring him to return to the mainstream prison. This was corroborated in the report of Mr Gelson.
The Applicant is the head chef of the prison. He has not been required to undertake any rehabilitation courses, although he did undertake a ‘Stand Up with Confidence’ course and received a certificate of graduation[15]. Although such courses are available, he has not undertaken further courses because it would take him away from his work as head chef. He works in that role seven days a week.
[15] G8, page 96.
That evidence about the Applicant’s performance in prison was not challenged and I accept that evidence.
The Applicant provided testimonials from close friends who maintain contact with him and support him. They all speak very highly of him and regard him as an honest and valued member of the community and an excellent father who made a mistake.
Mr Rogers in a character statement dated 21 September 2020 spoke highly of the Applicant; that he was a good friend to his family, all of whom miss the Applicant, his company and his friendship. Mr Roger’s has a family concreting business and would employ the Applicant should he be released back into the community.
Mr O’Grady, OAM, OLY in his character statement dated 20 September 2020 said that he had known the Applicant for 15 years and their children have grown up together. He described the Applicant as a good person, who has a great and loving heart and is hard-working and reliable. He said he had been a hard-working and decent inmate; that he took on the job in the kitchen as a cook and was well respected. He described him as a hard-working, positive, well-planned and focussed individual who was respected. He referred to the Applicant’s close loving relationship with his three children.
Mr Taylor is a director of a landscaping and building supply business who provided a statement dated 8 September 2020 and who also gave evidence. His business employed the Applicant for two years whilst he was on bail. He described the Applicant as a responsible, honourable and well-intentioned man. As an employee, he was excellent and was similarly regarded by co-workers and customers. He was dedicated; his work ethic was exceptional. He regarded him as a “10/10 employee”. He was aware of the Applicant’s work with young offenders, which he described as typical of the Applicant’s character.
Ms McCormack provided two statements dated 15 July 2020[16] and an undated statement[17]. She also gave evidence. Ms McCormack has known the Applicant for over 20 years and was part of his circle of friends. Over the last 10 years she had separated from the group of friends due to her own marriage breakdown. She knows the Applicant’s wife and children well. She has recently facilitated contact with the Applicant. They now write to each other and speak on the phone regularly. She visited him on one occasion in prison before visiting rights due to the COVID-19 pandemic were suspended. She has spoken to him once by video link. She similarly described the Applicant as well-respected and well liked; an excellent worker who was honest, loyal and a great dad. They have more recently developed an affection for each other which she hopes they will pursue should his visa be reinstated. She said, “he is well worth it”.
[16] G14, page 111.
[17] Exhibit D.
Conclusion: Primary Consideration A
The Applicant does not dispute that his offending was serious. It was plainly serious offending. It occurred over a six-week period when the Applicant was suffering from undiagnosed depression and in the grips of his methylamphetamine addiction. It was offending that was directed to maintaining his drug habit but was also for financial gain.
It is noteworthy that at no other time had the Applicant committed any other criminal offence, including when on bail for over two years pending sentence. This two-year period provides an indication that he has been tested in the community for a lengthy period, has contributed to the community and his family by working and, importantly, has remained drug free.
It is not the role of the Tribunal to go behind the Sentencing Remarks of the Learned Sentencing Judge nor the Court of Criminal Appeal in assessing the Applicant’s role in the darknet business. The findings of fact must be, and are, accepted by the Tribunal. While the Applicant maintained a different factual basis for his offending, this is not a matter for the Tribunal.
However, the Applicant did not, on appeal, challenge the findings of fact and, in so doing, accepted the decision of the Learned Sentencing Judge. In evidence he said that he accepted the Courts’ decisions. He took responsibility for having become involved in the business. The Tribunal accepts the Applicant’s expression of contrition and remorse. He has made his peace with the sentence imposed upon him.
The Applicant’s representative in closing submissions addressed the risk of reoffending referred to in Exhibit F, Freedom of Information Determination dated 2 October 2020 and attachments. He referred to the attachment headed ‘Offender Plan,’ and in particular, page 2 which reads “[s]ecurity rating to remain medium. RoR:25/05/2016 1 LIT; 03/06/2016 4” and invited the Tribunal to interpret that entry as referring to the Applicant’s assessed risk of reoffending as a category one risk, being the lowest risk score on a scale of 1 to 20.

The Respondent argued that there was no evidence before the Tribunal to permit such an interpretation. There was no evidence of the scale or rating details, nor their interpretation. This was not evidence but merely a submission from the representative. There must be evidence to support submissions, and the Applicant’s representative did not provide such evidence.
The Applicant’s representative explained the difficulty he had in sourcing material, including material presented following the Freedom of Information Act application. I accept that he tried to obtain further evidence. However, the Respondent’s submission was correct. It is not for the Tribunal to speculate as to the meaning and interpretation of that entry based on submissions from the bar table. There must be evidence before the Tribunal upon which such finding can properly be made.
However, the attached Offender Plan contained prison assessment entries relating to the Applicant. It confirmed at page 2 and following that the Applicant had been monitored by HRAT from 24 May 2016 to 31 May 2016, having presented as emotionally distressed following sentencing. This was generally consistent with the report of Ms Hearne.
The Offender Report reports the Applicant’s childhood history of abuse, self-harm and overdose but that was not referred to by the Applicant in his evidence, nor was it the subject of a report from a psychologist or psychiatrist. In the absence of evidence in relation to those events, I disregard that history.
The Offender Report does refer to his presentation at and following his incarceration, to which I have had regard. The report from the prison social worker Ms Hearne corroborated that Offender Report entry and the Applicant’s evidence that he was suffering from depression. He was reported to have overwhelming emotional distress following his sentence and he was meeting regularly with the social worker to progress his emotions, including his depression.
Ms Hearne has described the Applicant’s exceptional level of engagement, to which I have already referred, as well as the development of very positive coping strategies to deal with stress and depression.
The Applicant was to continue to be drug tested and, should he remain in custody, a Throughcare Plan should be developed prior to his release to ensure a smooth transition to the community.
The Tribunal accepts the Applicant’s evidence that he was suffering from depression for 12 months prior to the offending due to the breakdown of his marriage. He also said that he continued to reside in the matrimonial home but in a separate bedroom, an arrangement that continued for the benefit of the children which is also accepted. The Tribunal also accepts that it was not until his admission into prison that the Applicant’s depression was first diagnosed.
The Respondent provided detailed submissions and referred to the Respondent’s Statement of Facts Issues and Contentions (“SoFIC”) in relation to this Primary Consideration. I will not repeat its contents in detail. The Respondent referred to the nature and seriousness of the Applicant’s conduct and referenced the findings of fact by both Courts to which I have referred. I agree with the Respondent’s submission that the offending was serious.
Under the heading ‘Risk of the applicant reoffending,’ the Respondent provided detailed argument together with oral submissions[18]. The Respondent referred to SCJD v Minister for Home Affairs [2018] AATA 4020 at [80] – [83] which discussed, amongst other things, the seriousness and corrupting effect of drug trafficking, as well as the destructive impact upon those who use drugs – for individuals, their families and the community. As the Tribunal there observed, the victim will often descend into criminal offending to support his or her habit, as was to some degree the case in this matter.
[18] Respondent’s Statement of Facts, Issues and Contentions at [32] – [40].
The Applicant was an impressive witness. Save for his evidence which contradicted the Courts’ findings of fact, I accept his evidence.
The sentence imposed for his offending was also indicative of the serious nature of the offending. However, there are aspects of the Applicant’s personal circumstances that impact upon this Primary Consideration.
He has always been gainfully employed and contributed to the Australian community prior to his offending. I accept that it was the deterioration in his marriage that gave rise to his depression and consequent drug addiction and offending. Importantly, the fact of his undiagnosed depressive condition was not before the criminal Courts but is before the Tribunal and gives some further context to his offence. The social worker’s report gives clearer insight into the Applicant’s mental health condition, and personal circumstances that impacted upon him and added to his depression. The sentence imposed clearly had a significant impact upon the Applicant and his ongoing depressive condition.
The Applicant has a strong continuing relationship with a group of friends together with his children. He has employment should he return to the community. He has a sound foundation from which he can forge a future and return to be a valuable and contributing member of the Australian community. These are all incentives for the Applicant not to reoffend.
The manner in which the Applicant has conducted himself following his arrest provides a persuasive indication of the Applicant’s future risk of reoffending. He has expressed contrition and remorse for his offending. The fact that he gave assistance to police in relation to the darknet business structure, in combination with his guilty plea, are factors consistent with that expression of contrition and remorse.
In custody he has worked hard to address his depression, and he has engaged with his social worker “to an exceptional level,” having been “open and honest during counselling sessions.” It is reported he has developed very positive coping strategies to deal with stress and depression and, in 2018, was stable on antidepressant medication, which he has since ceased.
The report of the manager from Mobilong Prison was a glowing testament to the manner in which the Applicant has conducted himself in custody. The Applicant soon achieved approval to move into independent living cottages and has maintained a “high excellence work and performance history”. The fact that he has only recorded two beaches was described as “quite remarkable” given the regime of complex rules and regulations within the prison system. But that incident in which he accepted a synthetic opiate tablet from a prisoner following bad news from his wife is not without relevance. It demonstrates that, despite all his hard work and dedication to self-improvement, the Applicant remains, to some degree, susceptible to indiscretion. His conduct was irresponsible and foolish. Insofar as he said that he had remained clean for seven years, the Tribunal does not find that the Applicant was attempting to deceive or mislead. The Tribunal accepts he has remained free from methylamphetamine and marijuana for seven years.
That he was appointed to a Peer Support Program in October 2016, and continues in that role, is to be commended. He is regarded as a valued team member and, together with his role as facilitator with the prison program to assist young offenders, indicates that the Applicant is genuinely motivated to contribute back to the prison community. It is further evidence of his true contrition and remorse. I am satisfied that this is indicative of him returning to be a valued member of the Australian community with a low risk of reoffending. He has been an exemplary prisoner.
When balancing the considerations in paragraph 13.1 of the Direction, including the seriousness of the offences and the risk of reoffending, I have decided that although this Primary Consideration must, because of the serious offences, still weigh in favour of the Respondent and the non-revocation of the visa cancellation, there is much evidence that weighs in favour of the Applicant. He offended when suffering from undiagnosed depression and when addicted to methylamphetamine. He then spent over two years in the community whilst on bail drug free and gainfully employed. Despite the single incident of accepting a tablet from a prisoner, he has remained drug free for seven years and has not reverted to drugs on other occasions of distressing news. Other factors which are indicative of the Applicant’s low risk of recidivism include: his otherwise good antecedent history, his behaviour following his arrest and cooperation with police, his exemplary behaviour within the prison system, the support he gives to young prisoners, his work ethic as head chef working seven days a week, his work history generally and his strong supportive friendships and future employment should he return to the community. The Tribunal is satisfied the Applicant is a low risk of reoffending.
When balancing the evidence this is an appropriate matter to give less weight to this Primary Consideration A than might otherwise be the case for a similar serious offence. Accordingly, I give moderate weight to Primary Consideration A in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and relevantly provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)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.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the 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.
The Applicant has two children namely, NC aged 16 years and IC aged 14 years.
Following the breakdown of his marriage, the Applicant and his wife separated but remained living in the same home so that he could continue to provide a parenting role to both his children. He did not live separately from his children until he was imprisoned for the subject offences.
The Applicant has continued to maintain regular contact with both children. He speaks to them almost daily. His former wife brings the children to the prison each month to spend time with the Applicant. He continues to provide them with love, support and direction as best he can from prison.
Both children have each provided two letters to the Tribunal which speak of the contribution the Applicant has made to their lives, both before and during his imprisonment, and their strong desire that he be in a position to do so in the future by remaining in Australia. Both speak of their love and respect for their father and of their stress and distress about the possibility of the Applicant being relocated to the United Kingdom, and the consequence that would have on their relationships with him, and his ability to remain a positive contribution in their lives. They fear they will not be able to see him in person; in the case of NC on a regular basis and IC because she will be unable to travel to England on her own and it may be years before she might see him again in person. They want him to continue to be a part of their daily life by remaining in Australia.
NC referred to the fact that when the Applicant is released from prison he will be over 18 years of age, but expressed the need for his father to help, support and guide him as he transitions to adulthood.
The Applicant gave evidence that he and his wife are currently engaged in divorce proceedings. He described the relationship as amicable and the children are the paramount consideration. They are currently resolving their property settlement in the hope that when released from prison he will have some funds to purchase a home near his children. He said that the custody of the children will be divided equally between them and that the children will live with him each or alternate week. The Tribunal accepts that evidence.
The evidence before the Tribunal refers to the three children of Mr O’Grady who are generally of similar age as the Applicant’s children and have grown up together. Mr O’Grady’s eldest child is now aged 19 years and hence is not a child to whom this Other Consideration B applies. Mr Rogers has three children who are friends of the Applicant’s children, live on the same street and engage with the Applicant’s children regularly. Each of those children have grown up and enjoyed a close friendship with the Applicant and his family. Ms McCormack has two children who have some memory of the Applicant but have not engaged with the Applicant or his children in approximately 10 years.
The Applicant does not assert that he plays a parental role in relation to any of those children but, in relation to the children of Mr O’Grady and Mr Rogers, he enjoyed a good friendship with them; he engaged with them and was supportive of them to the extent of their relationship as friends. The Applicant was particularly close to Mr O’Grady’s eldest son due to a common interest in BMX cycling. The Applicant competed in BMX cycling to a high level and was heavily engaged in that sport including with Mr O’Grady’s son and children generally.
Conclusion: Primary Consideration B
Paragraph 13.2 of the Direction and, in particular, paragraph 13.2 (2) directs that this Primary Consideration applies only if the child is, or would be, under 18 years of age the time when the decision is made. NC and IC are aged 16 and 14 years respectively and are children to whom this Primary Consideration B applies. Other than their age, the evidence does not indicate that the interests of both children differ at the time of this decision. In relation to each child, the Applicant has and will continue to play a parenting role as best he can from within the prison system, and should he be released back into the community, he will do so without impediment that prison imposes on their relationship.
Paragraph 13.2 (4) (b) directs the Tribunal to consider the extent to which the Applicant will likely play a positive parental role in the future, considering the length of time until each child turns 18 years.
The Applicant’s earliest release date on parole is 3 June 2022[19]. The Tribunal received evidence from the Applicant that, should his visa be reinstated, he will be eligible to apply at an earlier date to spend the balance of his sentence of imprisonment, pending parole, on home detention. There is no evidence before the Tribunal from Correctional Services Department to indicate whether or not that application may succeed. Hence, it is merely speculative and there is no basis for the Tribunal to be reasonably satisfied that the Applicant will be granted a home detention sentence.
[19] Exhibit G, page 1.
NC will turn 18 years of age in November 2021. The Applicant’s ability to perform a parenting role for the balance of his minority will be limited due to his current incarceration. IC will turn 18 years of age in July 2024. Assuming the Applicant is released on parole in June 2022 he will, for the remaining two years following his release and until IC turns 18 years of age, be able to contribute in a more complete way, as a parent to IC, unencumbered by his incarceration.
The Tribunal is satisfied that the Applicant has a strong loving relationship with both of his children and, until his imprisonment, was very much involved as a parent in every aspect of their daily lives. The Tribunal is satisfied that both children have a very strong bond with their father and that bond continues despite his imprisonment and will continue upon his release from custody.
The Tribunal is also satisfied that it is in the best interests of both children that the Applicant’s visa cancellation be revoked.
Given NC is aged 16 years and will be an adult when the Applicant is likely to be released on parole, the Applicant’s ability to play a parental role for the duration of his minority will be limited. In relation to IC, she is 14 years of age, but in the final two years of her minority the Applicant will be playing a significant parental role. Some reduction need be made to the weight to be given to this Primary Consideration having regard to the nature and extent to which the Applicant will play a parental role until each child turns 18 years of age. Were it not for the age of his children, Primary Consideration B would weigh heavily in favour of the Applicant. Nonetheless the Tribunal is satisfied that despite imprisonment the parental relationship in relation to both children remains significant.
As for those children of Mr O’Grady and Mr Rogers to whom I have referred, the impact of the Applicant’s relocation to the United Kingdom will be the same and one of disappointment to moderate upset. That impact will likely be compounded by the significant distress caused to the Applicant’s children given all of those children are close and have grown up together.
The Tribunal is not satisfied that there will be any impact upon Ms McCormack’s children given they have not seen the Applicant for 10 years and have at best only some memory of him. At the moment the Applicant and Ms McCormack have developed an affection for each other. They are not in a relationship. The Applicant’s relocation to the United Kingdom will be disappointing to Ms McCormack but there is no evidence to suggest her disappointment will, in turn, impact upon her children.
Having regard to the best interests of the children to whom Primary Consideration B applies, and allowing for some reduction in weight due to the age of the Applicant’s children, this Primary Consideration weighs significantly in favour of the Applicant and the revocation of his visa cancellation.
Primary Consideration C: Expectations of the Australian Community
Paragraph 13.3 of the Direction sets out the third of the Primary Considerations the Tribunal should have regard to and relevantly provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

Further, paragraph 6.3(5) and 6.3(7) of the Direction provides:
(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 for only 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.
(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 that non-citizen’s visa should be cancelled, or their visa application refused.
The factual matters relevant to this Primary Consideration have been outlined above. Of relevance are those factors referred to in Primary Consideration A, both in terms of the offending and the Applicant’s personal circumstances. I will not repeat them.
The Tribunal’s approach in considering this Primary Consideration was considered in the decision FYBR v Minister for Home Affairs[20]. This matter involved a visa refusal, but its principles apply equally to s 501CA mandatory visa cancellations where paragraph 13.3 of the Direction is worded in identical terms to paragraph 11.3 of the Direction. In FYBR, it was found that paragraph 11.3 of the Direction expresses a deemed community expectation, that all persons who have committed a serious criminal offence giving rise to character concerns, must expect refusal, or in this case, the revocation of that person’s visa. Hence, it is the expectation of the Australian community that the Applicant obey Australian laws. That expectation has not been met because, by his offending and being sentenced to imprisonment, he does not pass the character test pursuant to s 501(6)(a) of the Act. It is not for the Tribunal to make its own assessment of community expectations. The nature of the character test is such that the deemed expectation will arise in a most cases as it does here.
[20] [2019] FCAFC 185 (‘FYBR’).
However, as Charlesworth J said in FYBR at [76]:
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations” listed non-exhaustively in cl 12. The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.
The weight to be given to this Primary Consideration having regard to the principles referred to in paragraph 6.3 of the Direction and in particular 6.3(5) and a 6.3(7) of the Direction are to be determined by the Tribunal in the operation of its discretion. The Applicant did not pass the character test pursuant to s 105(6)(a) of the Act, which must weigh against the revocation of his visa cancellation.
Further the Tribunals approach to considering the expectations of the Australian community was discussed in Jupp and Minister for Immigration and Multicultural and Indigenous Affairs[21] where Deputy President Block said at [7] that the expectations of the Australian community should be considered through the lens of:
… middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me.
[21] [2002] AATA 458.
Conclusion: Primary Consideration C
The offences were serious, and the Applicant failed the character test. The deemed expectation of the Australian community is that the Applicant lose the privilege of holding a visa to remain in Australia. However, there are a number of factors which must be considered in the operation of the Tribunal’s discretion and the weight to be given to this Primary Consideration.
As provided in paragraphs 6.3 (5) and (7) of the Direction, it is relevant that the Australian community may afford a higher level of tolerance of criminal conduct given the significant time the Applicant lived in Australia prior to his offending; his contribution to the Australian community and the consequence of his visa refusal on minor children and others in the community.
The Applicant has lived most of his adult life in Australia and has made a valuable contribution to the Australian community. Prior to his offending and whilst on bail, the Applicant has been employed. He provided for his family and the broader community. He was an active member in his local community including in BMX cycling. Further, there will be a significant impact upon those minor children to whom I have referred in Primary Consideration B which must also be taken into account when weighing this Primary Consideration
Also, there are number of factors personal to the Applicant which are also relevant to the weighing process.
The breakdown of the Applicant’s marriage gave rise to his depression, which in turn led to his use of and addiction to methylamphetamine. This in turn gave rise to his offending, which provided him with a source for his drugs but also was for financial gain.
I accept that the Applicant was suffering from undiagnosed depression at the time he first used methylamphetamine and that this condition was not diagnosed until he was imprisoned.
The Applicant has been in Australia for approximately 20 years and other than the subject offences committed over a period of 6 weeks, his National Police Certificate confirms he had no other criminal offences.[22]
[22] G16, page 122.
He has an excellent work history. Whilst on bail for over two years pending sentence, the Applicant again returned to gainful employment and did not offend. His employer Mr Taylor in evidence spoke of his work ethic in glowing terms. The Applicant represented Mr Taylor’s business “exceptionally well,” enjoyed an excellent relationship with the business’ customers, was trustworthy, caring and sincere man of whom he said they “need a few more guys like Gary”. He remained in the matrimonial home and continued to contribute to the family unit and the parental care of his children until imprisoned.
Following his imprisonment, the Applicant’s behaviour in prison has been exemplary. He quickly earned the trust of his peers and prison staff and was placed in the Cottages. The Applicant’s role in supporting and mentoring young prisoners demonstrates a contribution to the Australian community, in terms of supporting and assisting the correctional services in the support and management of prisoners, the efficient functioning of the prison system, and assisting in the rehabilitation of young adult offenders across a range of cultures. He has received training to assist him in that service and has written programs which have been implemented in the second week of the 3-week training program.
Further, the Applicant’s enthusiasm for employment is demonstrated in his role as head prison chef where he works seven days a week.
The letter from Mr Gelston described him as maintaining “a generally high excellence work and performance history whilst serving his sentence… and has traditionally been employed in positions of high responsibility or trust than the average prisoner.” He said that the Applicant “has presented as a mature respectful individual who is seen to be an above average prisoner who has developed good working relationships with both peers and staff.”
The Tribunal accepts that evidence which goes to the good character of the Applicant and his contribution to the Australian community. The Tribunal is satisfied that the discretion is properly enlivened and the weight to be given to the Primary Consideration C should be reduced. This Primary Consideration still weighs in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation, but I give medium weight to Primary Consideration C in favour of the Respondent. Were it not for those personal factors, this Primary Consideration would have weighed heavily in favour of the Respondent.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14(1) of the Direction, include (but are not limited to):
(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.
No evidence or argument was advanced in relation to Other Considerations (a), (c) and (d) such that the they are of relevance in determining the application. The Tribunal will address Other Considerations (b) and (e).
Other Consideration (b): Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that;
(i)Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)More weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).
The Applicant has lived in Australia for over 20 years and, as discussed above, has two children with whom he has a close and loving relationship and maintains ongoing and regular contact. He has strong and enduring friendships within the Australian community as demonstrated by the various character statements and evidence to which the Tribunal has referred. He regards Australia as his home and himself as an Australian.
The Applicant’s family in the United Kingdom are his elderly parents who are currently both in hospital but otherwise live on a housing estate. His brother is married with children. He maintains contact with his family by telephone. He has not maintained contact with old friends from England. He assumes he has cousins, particularly on his father side of the family, but does not know them and has had no contact with them.
The Applicant has an excellent work ethic and is highly regarded as an employee for his dedication, trustworthiness, reliability and customer service. The Tribunal accepts that he has two genuine offers of employment immediately available to him should he be released into the community. That work ethic has been maintained in prison, working as the head chef in the kitchen seven days a week.
Even when imprisoned the Applicant has continued to make a valuable contribution to those young adult offenders who first come into the prison system. His role in providing that service is a credit to him. That work is demonstrative of the Applicant’s desire to help others and make a valuable contribution, which is relevant to the well-being of the broader prison community, the safe and efficient running of the prison, the transition of young offenders into the prison system and their ongoing rehabilitation and return to the general community.
The Tribunal accepts that the Applicant and Ms McCormack have developed an affection, and that both have expressed the desire to continue that relationship upon his release from prison. Although the relationship is in a very early stage, they have known each other for a number of years and Ms McCormack searched out and contacted the Applicant in prison following the breakdown of her marriage. She has spoken to her children about the Applicant. They have some memory of him. The Tribunal accepts that they were both honest in expressing that wish to pursue that relationship following the Applicant’s release from prison.
Conclusion: Other Consideration (b)
The Applicant’s ties are within Australia and include his family and friends. Those friends also support and remain close to the Applicant. He has the opportunity for continued employment in Australia and the intention to build a future, particularly with his children but also potentially with Ms McCormack and her children. His only ties with the United Kingdom are his parents and brother by telephone.
He has a close and loving relationship with his teenage children. His son has written of the support and development he hopes to experience with his father as he leaves school and takes on the responsibility of adulthood. He writes that he needs his father in his life. His daughter also writes of the guidance and support she has enjoyed and to imagine life without her father is unbearable.
The Applicant’s ties to Australia developed from his arrival in 1999. His offending occurred 14 years later in 2013, having spent many years contributing positively to the Australian community including in work, providing for his family, and to sporting activities such as BMX racing and development with children. He continues to make a positive contribution in prison by his work and facilitating role with young prisoners.
Balancing the whole of the evidence this Other Consideration (b) weighs in favour of the Applicant. The Tribunal gives significant weight to this Other Consideration and the revocation of the Applicant’s visa cancellation.
Other Consideration (e): Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Applicant spent many of his formative years living in the United Kingdom or in Europe. He had qualifications in kayaking and was a lorry driver. He has maintained a truck driving license and, until his imprisonment, he was engaged in that profession.
The only evidence in relation to the Applicant’s health was that of his depression. He has ceased taking medication for that condition and there is no evidence that it is continuing.
The Applicant gave evidence that his parents and brother do not have accommodation available for him. He will, in all respects of his life, be starting afresh should he be relocated to the United Kingdom.
Conclusion: Other Consideration (e)
The Applicant is aged 47 years and is currently good health. He no longer suffers from the depressive condition that was affecting him at the time of his offending and early in his imprisonment.
There are no language barriers or cultural barriers that will impact upon the Applicant’s return to the United Kingdom.
The Tribunal infers that the Applicant will have access to social, medical and economic supports that are available in the United Kingdom and he will be able to receive the same medical treatment he would in Australia for any medical condition that he may suffer in the future.
The Applicant may have to renew his truck driving license in the United Kingdom but given the years he has continued to remain in that industry in Australia, it is unlikely that there is any impediment to the renewal of that licence.
The Tribunal accepts that if removed to the United Kingdom it will be upsetting to the Applicant and will likely cause him a level of stress and distress. He will have some initial difficulty in re-engaging with the community and finding employment and accommodation. He will be assisted to some extent by his matrimonial property settlement in dealing with financial obligations pending obtaining employment.
Having regard to the length of time the Applicant has spent in Australia, the separation from his family and the initial difficulties he will encounter upon a return to the United Kingdom, the Tribunal is satisfied that in respect of Other Consideration (e) slight weight be given to the Applicant in favour of revocation of his visa cancellation.
There are no more Other Considerations that the Tribunal should have regard to on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:
(a)Primary Consideration A weighs moderately in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation;
(b)Primary Consideration B weighs significantly in favour of the Applicant and the revocation of his visa cancellation;
(c)Primary Consideration C weighs mediumly in favour of the Respondent and the non-revocation of the Applicant’s visa cancellation;
(d)Other consideration (b) weighs significantly in favour of the Applicant and the revocation of the Applicant’s visa cancellation; and
(e)Other consideration (e) weighs slightly in favour of the Applicant and the revocation of the Applicant’s visa cancellation.
The combined weight of the Primary Consideration B and the Other Considerations (b) and (e) is such that they outweigh Primary Considerations A and C.
The Tribunal therefore finds that, taking into account all of the considerations in the Direction, they weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the Tribunal sets aside the reviewable decision. In substitution, the Tribunal decides that the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa be revoked.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

……………[sgnd]………………………….

Administrative Assistant Legal

Dated: 10 November 2020

Date of hearing: 27 October 2020

Representative for the Applicant: Dr Timothy Haines, Emulink Migration & Intercultural Consultancies

Representative for the Respondent: Mr Michael Palfrey, HWL Ebsworth Lawyers

Date of hearing:	27 October 2020
Representative for the Applicant:	Dr Timothy Haines, Emulink Migration & Intercultural Consultancies
Representative for the Respondent:	Mr Michael Palfrey, HWL Ebsworth Lawyers