Cortes and Minister for Immigration and Multicultural Affairs (Migration)

[2025] ARTA 212

Cortes and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 212 (11 March 2025)

Applicant: Gilberto Cortes

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                 2022/9801

Tribunal: Senior Member T Tavoularis

Place:Brisbane

Date:11 March 2025

Decision:Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 24 November 2022 to not revoke the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa.

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

Senior Member T Tavoularis

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class BF Transitional (Permanent) visa – Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– primary and other considerations – protection of the Australian community from criminal or other serious conduct – the strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed - decision under review affirmed

Legislation
Administrative Review Tribunal Act 2024 (Cth)
Crimes Act 1914 (Cth)
Migration Act 1958 (Cth)

Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison v The Minister for Immigration and Citizenship (2009) 106 ALD 666
Lesianawai v Minister for Immigration [2024] HCA 6
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 7
Walker v Minister of Home Affairs [2020] FCA 909

Secondary Materials

Direction No 110 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Statement of Reasons

INTRODUCTION

1. The Applicant is a 45-year-old Chilean national who arrived in Australia on 1 March 1985. Upon arrival, he was granted a Class BF transitional (permanent) visa[1] on 1 September 1994. He has not departed Australia since his initial arrival.[2] He initially applied to this Tribunal on 30 November 2022 seeking review of a decision made by a delegate of the Respondent Minister on 24 November 2022 to not revoke the mandatory cancellation of his visa.

   [1] Hereinafter referred to as ‘the visa’.

   [2] R1, p. 151.

2. The Applicant’s visa was mandatorily cancelled pursuant to section 501(3A) of the Act.[3] He made unsuccessful representations to have the mandatory cancelation of his visa set aside. This resulted in the abovementioned refusal-to-revoke decision[4] made on 24 November 2022 pursuant to section 501CA(4) of the Act. This application has had a previous ventilation in this Tribunal resulting in the decision under review being affirmed on 1 March 2023.

   [3] That is, the Migration Act 1958 (Cth), hereinafter referred to as “the Act”.

   [4] Hereinafter referred to as ‘the decision under review’

3. The Applicant sought judicial review of the Tribunal’s first decision and on 23 September 2023, the Federal Court of Australia remitted the application back to this Tribunal for re-determination according to law. This remittal hearing conducted before me is a hearing de novo but evidence that was before the Tribunal during the first hearing can be taken into account for present purposes.

4. The instant hearing proceeded before me on 27 February 2025. The Applicant appeared by video from Perth and the Respondent’s representative[5] initially also sought to appear by video but technical issues ensued with his video connection. That issue was not capable of immediate technical cure and was only resolved by the Respondent’s representative appearing in person before me at the Tribunal’s Brisbane Registry. I checked with the Applicant who had no issue with the Respondent’s representative appearing in person while he (the Applicant) appeared on video.

   [5] Mr Jake Kyranis (Special Counsel) Sparke Helmore Lawyers.

5. At the commencement of the hearing, I sought and received the parties’ approval to a draft Exhibit List that had been circulated to them prior to the hearing. The parties agreed that this draft Exhibit List is a correct summary of the entirety of the material before the Tribunal for present purposes. Attached to these reasons and marked ‘ANNEXURE A’ is a true and correct copy of that Exhibit List. The two witnesses who provided oral evidence to the instant hearing were (1) the Applicant and (2) a character witness, namely, Pastor Malcom Eastwick, Church Pastor of Avon Valley (Northam) and Narrrogin Seventh-day Adventist Churches.

   LEGISLATIVE FRAMEWORK

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

   4 The Minister may revoke the original decision if:

   the person makes representations in accordance with the invitation; and

   the Minister is satisfied:

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

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

7. I am satisfied that the Applicant made the ultimately unsuccessful representations required by s 501CA(4)(a) of the Act. There remain two issues presently before the Tribunal. They are:

   a)whether the Applicant passes the character test; and if not

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

   Does the Applicant pass the character test?

8. The Applicant does not pass the character test as a matter of law.[6] It is abundantly clear from his criminal history that he has received cumulative sentences of imprisonment amounting to 12 months or more,[7] and thus has a “substantial criminal record” which compels this Tribunal to find he does not pass the character test. The 12-month threshold is comfortably met as a result of the imposition of cumulative head custodial terms of well in excess of 12 months.

   [6] Harrison v The Minster for Immigration and Citizenship (2009) 106 ALD 666 at [63].

   [7] Section 501(7)(c) of the Act.

   Is there another reason why the Decision to cancel the Applicant’s visa should be revoked?

9. In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa,[8] the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction 110[9] has application.

   [8] Pursuant to section 501C(4) of the Act.

   [9] Direction No 110 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA commenced on 21 June 2024. It replaces Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

10. For the purposes of deciding whether or not to revoke the mandatory cancellation of a

    
    

    non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:

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

    (2) The safety of the Australian Community is the highest priority of the Australian Government.

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

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

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

    (6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

    (8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.

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

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

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

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

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

    (5)expectations of the Australian community.

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

    a)legal consequences of the decision;

    b)extent of impediments if removed; and

    c)impact on Australian business interests.

13. I move now to a consideration of each of those primary and other considerations as may be relevant to the instant facts.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

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

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

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

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

16. I will consider each in turn.

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

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

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

    (i)     violent and/or sexual crimes;

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

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

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

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

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

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

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

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

    (d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;

    (e)the frequency of the non-citizen’s offending and/or 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 offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

    The Applicant’s offending: an overview

18. The Applicant has a criminal history comprising some 180 convictions. In terms of cumulative head custodial sentences, he cannot  be heard to cavil with the proposition (and finding) that his is a very extensive criminal history running (in terms of sentencing episodes) from December 1997 to February 2021, a period of some 24 years. His offending is multi-faceted and has seen him commit (1) drug offences; (2) traffic offences; (3) repeated breaches of extant Court orders; (4) offences of dishonesty (in the realms of fraud, stealing, robbery, provision of false details to Police); and (5) violent offending (in the realms of assault, assault Police officer, assault occasioning bodily harm. The Applicant’s more serious offending is neatly summarised in the Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’).[10]

    [10] See R2, pp. 2-5, [5]-[17].

19. To whatever extent the material may contain any reference to the Applicant’s criminal history in the Children’s Court, I am compelled to disregard that material pursuant to the High Court authorities of Thornton[11] and Lesianawai.[12] These authorities refer to the operation of s85ZR of the Crimes Act 1914 (Cth) and how it now precludes this Tribunal from taking into account this Applicant’s youth offending which did not result in any conviction. In a similar vein, I note that at the first ventilation of this application before this Tribunal, the Applicant was not given any warning against self-incrimination. Out of an abundance of caution, I will disregard and not take into account the Applicant’s evidence given at the first hearing and only take into account the evidence he gave at the instant hearing before me.

    [11] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17.

    [12] Lesianawai v Minister for Immigration [2024] HCA 6.

    Application of factors appearing at paragraph 8.1.1(1) of the Direction.

20. The chapeau to paragraph 8.1.1(1)(a) of the Direction contains the very serious descriptor for three stipulated categories of offending comprising violent and/or sexual crimes; crimes of a violent nature against women or children and acts of family violence. This Applicant has committed a range of violent offences and, accordingly, this particular sub-paragraph of the direction now compels the allocation of the very serious descriptor to it. Further, the chapeau to paragraph 8.1.1(1)(b) of the Direction contains the serious descriptor for four specific categories of offending.

21. One of those four categories refers to crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties. Here, the Applicant has been convicted of assaulting a police officer which is conduct falling squarely within the parameters of paragraph 8.1.1(1)(b)(ii) of the Direction. As such, his offending should now be (in totality) characterised as at least serious but when regard is had to paragraph 8.1.1(1)(a) of the Direction and the subsequent paragraphs I will discuss, it can be readily found that the more accurate and appropriate descriptor should be very serious.

22. The Applicant has committed offences of violence which also fall within the auspices of paragraph 8.1.1(1)(c) of the Direction. Those crimes of violence have been variously punished by (1) a community-based order; (2) a $750 fine; and (3) a three year head custodial term. Of course, the balance of the Applicant’s non-precluded offending has been punished by a multiplicity of both custodial and non-custodial sentences. Overall, the sentences he has received for his offending easily convince me that the totality of his offending should now be found to be very serious.

23. To the best of my understanding of the material, there is no reference to any victim impact statement (or equivalent) talking about the impact of the Applicant’s offending on any victim and/or their family. Paragraph 8.1.1(1)(d) should be put to one side and rendered neutral for present purposes. The commission of some 180 offences across a 24-year sentencing history averages out at something like 7-8 offences for each year of that criminal history. This is plainly frequent offending pursuant to paragraph 8.1.1(1)(e) of the Direction.

24. Does the offending demonstrate any trend of increasing seriousness? To my mind the offending is serious from its outset. His seventh conviction was for stealing (m/vehicle) reckless dangerous for which he received a head custodial term of 18 months. His eleventh conviction was for robbery in company for which he received a head custodial sentence of three years. This level of seriousness seems, in one form or another, to have been maintained throughout the remainder of his history. I am therefore satisfied there is no need to ascertain any trend of increasing seriousness in the offending and that is because it has been serious from its outset. Just from the sheer frequency of the offending, I am comfortably satisfied that this paragraph 8.1.1(1)(e) very strongly militates in favour of a finding that the totality of the Applicant’s offending in this country has been very serious.

1. The extensive nature of the offending history is such as to readily disclose a number of cumulative effects. They can be described thus: (1) victims have been deprived of their lawfully acquired property; (2) victims have been physically interfered with; (3) other road users have been exposed to risk of catastrophic harm; (4) the community’s policing, judicial sentencing and custodial resources have been unduly and inordinately consumed; (5) the authority of the state’s law and order apparatus (the Police) has been directly challenged; and (6) despite the best efforts of judicial sentencing officers, this Applicant appears to have experienced little or nothing in the form of any deterrent effect from the multiplicity of sentences imposed on him. It can be safely found that paragraph 8.1.1(1)(f) strongly militates in favour of a finding that this Tribunal should now regard the Applicant’s offending as very serious.

2. With specific reference to paragraph 8.1.1(1)(g), it is correct to say the Applicant has been dealt with for providing false details to Police. However, this specific paragraph refers to a non-citizen’s provision of false or misleading information to the Minister’s Department. In these circumstances, I will put this particular paragraph to one side and render it neutral.

3. The position is much clearer with regard to paragraph 8.1.1(1)(h). In this case, the Applicant has repeatedly re-offended after being formally warned by the Respondent’s Department about the consequences of further offending on his visa status to remain here. There have been four such written warnings, the first of them occurring in 2002-2003. As long ago as September 2007, the Applicant was told the following in these types of warning letters:

   The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6) could result in the consideration of the cancellation of your visa or refusal of your application under section 501 of the Act. I note that the consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.[13]

   [Emphasis in original]

   [13] R1, p. 145.

4. Despite this clear and unequivocal warning (given in 2007) the Applicant went on to commit well over 100 offences in this country. Paragraph 8.1.1(1)(h) militates very strongly in favour of a finding that this Applicant’s offending in this country has been of a very serious nature. With specific reference to the next paragraph 8.1.1(1)(i), the Applicant came here as a five year old and has never left this country since his arrival. There is no record of him committing offences in another country which could be regarded as offences in Australia. This paragraph 8.1.1(1)(i) should be put to one side and rendered neutral for present purposes.

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

5. I have had regard to the totality of the Applicant’s unlawful conduct in this country. I have sought to apply the relevant componentry of paragraph 8.1.1(1) of the Direction to the totality of that conduct. Those relevant components of paragraph 8.1.1(1) of the Direction now safely inform a finding that this Applicant’s unlawful conduct in this country should be characterised as “very serious”. I so find.

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

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

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

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

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

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

   ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken);

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

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

8. This Applicant’s unlawful conduct has been very persistently committed. Viewed cumulatively, the harm resulting from any re-commission of his offending would be so serious that it would be unacceptable to the Australian community.[14]  The sort of harm that would result to any further victim of re-commission of such conduct does, in many respects, run parallel to the cumulative effects of his offending contemplated by paragraph 8.1.1(1)(f) of the Direction.  

   [14] Pursuant to paragraph 8.1.2 of the Direction.

9. Re-commission of his violent conduct could quite conceivably result in serious physical and psychological harm. Re-commission of his property offending would again result in materially measurable harm to its victims. Further offending of the volume already committed would be unduly consumptive of the community’s policing, judicial sentencing and custodial resources. Overall, the nature of the harm resulting from re-commission of the Applicant’s unlawful conduct would result in psychological, physical and materially measurable harm to both its victims and the community generally whose resources would again be consumed to deal with it.

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

10. As mentioned earlier, the Applicant’s criminal history in this country is a very long one both in terms of the offences committed and its length of over two decades.  As also mentioned, virtually the full range of sentencing options have been imposed on him with little or no deterrent effect. It seems any deterrent effect has always been surpassed by a requirement to satiate his need for illicit drugs. He was forthright enough at the instant hearing  to say the abuse of illicit drugs has been the main driver of his offending. He spoke of a storied usage of cannabis and, in particular, heroin.

11. It is not to put words in the Applicant’s mouth to suggest that his offending has been dominated by a quest to realise funds in order to purchase illicit drugs.  He told the instant hearing about some of the rehabilitative efforts he has made but the sad reality is that he has relapsed into a pattern of illicit substance abuse and consequential offending. Two specific treatment modalities he referred to in his oral evidence were, firstly, Holyoake which is a counselling and residential rehabilitation facility. He nevertheless came out of custody and resumed offending.

12. Secondly, he spoke of participating in the Pathways rehabilitation program during his time in criminal custody in 2022. Yet even after completing this program, the Applicant told the instant hearing that while in immigration detention as recently as last year, he was illicitly using Suboxone. It would appear that not even the closed confines of immigration detention have been sufficient to curb his unresolved predisposition towards abuse of illicit substances.

13. To his credit, the Applicant was forthright enough to acknowledge his very lengthy association with the abuse of illicit substances and to also acknowledge that successfully maintaining a pattern of sobriety if now returned to the community would be challenge for him. It is, to my mind, unlikely that he will meet this challenge in circumstances where (1) he has received some form of treatment in the past but has repeatedly relapsed and re-offended; and (2) where not even four separate written warnings from the Respondent’s Department about the existential risk to his visa status arising from further offending have been sufficient to motivate sobriety and a possible lowering of his recidivist risk. If these four warnings did nothing to motivate his sobriety why should this Tribunal now accept that a successful outcome in the instant proceedings would have any different impact on his rehabilitative prospects and thus his current and shirt to medium term recidivist risk?

14. The most recent independent assessment of the Applicant’s recidivist profile is to be found in a report from the Western Australian Department of Justice which is dated 28^th December 2022. This report notes that in mid-2021 the Applicant was denied parole “….due to his history of breaches, unmet treatment needs, lack of accommodation and employment.”[15] This report also recommends that “He should complete a treatment program prior to release.”[16] The report makes specific reference to this program as the “Pathways Program” to which I have already referred. The report said the Applicant “…..should complete the Pathways Program to address the significant correlation between his substance use and his offending behaviour.”[17]

    [15] R1, p323.

    [16] R1, p323.

    [17] R1, p323.

15. In terms the Applicant’s then-assessed level of recidivist risk (i.e December 2022) and required rehabilitative engagement, this report said the following:

    Summary of Evidence for Program Allocation

    Based on the current assessment Mr Cortes presents at a very high risk of reoffending on the LS/RNR for general reoffending with very high needs linked to companions and high needs across the areas of criminal history, leisure/recreation, alcohol/drug problem, education/employment, as well as pro-criminal attitude/orientation.

    As stated in his Psychiatric Report for Court, illicit substance use is an area of concern for Mr Cortes as there is a direct relationship between his drug use and offending behaviour……Mr Cortes entrenched drug use has also been determined to inflict his schizophrenic symptoms. It was further ascertained during the interview that an increase in substance use also increases Mr Cortes’ offending behaviour.

    It is therefore recommended that Mr Cortes completes the Pathways program as his offending behaviour is heavily precipitated by substance abuse. His high Alcohol/Drug problem score on the LS/RNR also identifies that this program will therefore equip him with the skills to prevent relapse, minimise negative peer pressure and lead a responsible and prosocial lifestyle”. [18]

    [18] R1, p 323-324.

16. During the hearing before me, the Applicant was asked where he would live if this Tribunal returned him to the Australian community. He said that he would be living in a suburb in Perth known as Victoria Park. When asked who he would be living with, he said that he would be hopefully living with a church member with whom he says he spoke several months ago. The Applicant said this church member told him there was a room available for rent and the only condition for renting that room was that the potential renter had to be of the Christian faith. He was asked to recall this church member’s name and the Applicant said he believed it was ‘Simon’ but that he did not know this person’s surname. The Applicant told the instant hearing he had never met this person because he has been in immigration detention.

17. He was asked whether he would have to pay rent for this room and he responded in the affirmative and that he was of the belief the rent would be $260 a fortnight. He was asked about how he expected to pay that rent and he responded with saying he looked forward to being employed. In terms of employment, he spoke of being previously employed as a general factory hand. He thought it would not take him very long to find employment. He nevertheless conceded he has not worked in the broader community since 2018. He also conceded that he does not have any employment lined up and available to him if now returned to the community.

18. In terms of family support, he spoke of his mother, brother, sisters and nieces as the only family he has ever known. He confirmed he had not seen his mother on a face-to-face basis since 2020. He further confirmed that he had not seen his sister and nieces for nearly five years. With reference to his brother, he said that he had not seen him for approximately seven years. Be that as it may, he told the instant hearing that the last time he spoke with his mother and brother was the day immediately prior to the instant hearing and that the last time he spoke with his sister was at Christmas time.

    Findings about risk

19. The only rational and logical findings about the Applicant’s current recidivist risk profile make for negative and sobering reading. First, in terms of rehabilitation, it is safe to find he is barely at the start of his rehabilitative journey and that even with rehabilitative engagement in the community the maintenance of sobriety and abstinence will be a challenge for him. Second, his very lengthy criminal history is surely indicative of a person whose predisposition toward illicit substance abuse has always assumed priority over and above any deterrent effect that past sentencing regimes have sought to impress upon him. There is little or nothing to suggest  this prioritisation would now reliably change if he were returned to the community.

20. Third, as noted in the abovementioned WA Department of Justice report from December 2022, the Applicant’s unresolved issues with illicit drug abuse have spawned significant mental health issues in the form of schizophrenia. There is little or nothing in the evidence to suggest the Applicant has the symptoms under any form of clinically remedial management and control. Fourth, one cannot ignore the abovementioned findings of the report from the WA Department of Justice from December 2022 and which says the Applicant represents a very high risk of re-offending for general offending. This report also refers to ‘… illicit substance use is an area for concern for [the Applicant]…’ and, perhaps even more concerningly, that ‘…an increase in substance use also increases [the Applicant’s] offending behaviour’.

21. Fifth, I am hard-pressed to identify any kind of supportive elements militating against the Applicant’s recidivist risk. His prospects of employment are uncertain; his proposed residential arrangements appear uncertain or, at the very least, unfamiliar to him; he has not seen his mother in-person for five years; he has not seen his sister in-person for nearly five years and he has not seen his brother in person for approximately seven years; and he was not able to identify a pro-social individual or organisation that could, as it were, take him under their wing and assist him to successfully re-integrate back into the community. I accept the Applicant’s claimed commitment to religion. I also accept the supportive evidence of Pastor Malcom Eastwick. But this is, with respect, more generic support akin to a fellow member of a rugby club or golf club, for example. A shared belief in a faith or a hobby does not mean those fellow congregation members or enthusiasts will necessarily become involved in the personal oversight of the Applicant’s return to the community.

    Assessment of recidivist risk

22. I will find, consistent with the WA Department of Justice report dated 28 December 2022, that this Applicant’s current level of recidivist risk is ‘very high’. To this finding, I will add a further finding that the harm likely to be caused by the Applicant’s conduct were it to be repeated, would be so serious that any such risk should now be found to be unacceptable. I reach this recidivist risk finding with the Direction’s dictum that the safety of the Australian community is “..the highest priority of the Australian Government”[19] at the forefront of my mind.

    Sub-paragraph 8.1.2(2)(c)

    47.The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a  
    

    [19] Paragraph 8.1(1) of the Direction. See also paragraph 5.2(2) of the Direction.

    non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.

    Conclusion of Primary Consideration 1:

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

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

    (b)I have found that, overall, the nature of the harm resulting from re-commission of the Applicant’s unlawful conduct would result in psychological, physical and materially measurable harm to both its victims and the community generally whose resources would again be consumed to deal with it.

    (c)the totality of the evidence points to a safe finding that this Applicant’s level of recidivist risk can now be found to be ‘very high’ and in addition, the harm resulting from any re-commission of that conduct would be so serious such as to render that risk as unacceptable to the Australian community.

    My analysis of the material leads me to a finding that this Primary Consideration 1 confers a very heavy level of weight in favour of this Tribunal affirming the Decision Under Review.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

24. My understanding of the material has led me to the same conclusion as that appearing in the Respondent’s SFIC: there is no evidence referable to or otherwise relevant to this Primary Consideration 2 which I will now put to one side and render neutral for present purposes.

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

25. Paragraph 8.3(1) of the Direction states:

    (1)  Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

26. The subsequent paragraph 8.3(2) also stipulates that in the assessment of any other ties that a non-citizen may have in Australia, the decision-maker must have regard to:

    a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child , noting that:

    (i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community during that time.

    (b)  the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. 

    The evidence about the Applicant’s family

27. As the instant hearing, the Applicant was clear in his evidence that (1) the only family he has in Australia and (2) the only family he has ever known comprises:

    ·his mother;

    ·his brother;

    ·his sister; and

    ·his three nieces, one of whom is over 18 and an adult.

28. In terms of actual contact with those family members, the Applicant’s evidence was as follows:

    ·the mother: he has not seen her face-to-face since 2020. She is 75 years of age and lives with her partner. The Applicant says she supported him for a very long time including the periods he has been in custody. He says that she told him she does not want to see him in the kind of custodial places – such as prison and immigration detention – where he now finds himself. He last spoke with her the day prior to the instant hearing;

    ·the brother: he has not seen him face-to-face for about seven years. The brother lives in New South Wales. The last time the Applicant spoke to his brother was the day prior to the instant hearing;

    ·the sister: he has not seen her face-to-face since 2020 and the last time he spoke with her was at Christmas time last year. The sister was divorced about three years;

    ·the three nieces: he has not seen these three nieces for five years. These nieces are the daughters of his sister. The eldest niece is aged 22 years and has a learning disability. The other two nieces are under 18. One of them is currently 17 and will turn 18 later this year. The youngest niece is aged 14 years. The three nieces live with his sister. This sister does not have a partner.

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

1. The sister has provided a relatively recent statement which appears in the material.[20] In this statement, she says ‘My relationship with my brother has always been good, we have always gotten along, we played a lot together when young, we have hanged [sic] out when ever possible for catch ups, he always tries to uplift me even in his hard times’.[21] She goes on to say ‘…I miss my brother very much, his nieces haven’t seen him either and have missed out on their uncle a lot. We only have each other here no more relatives from our side of the family. It would be nice for my girls to see their uncle again and also for my mum to spend her aging [sic] years with all of us’.[22]

   [20] A3.

   [21] A3, p. 2.

   [22] A3, p. 2.

2. The brother’s statutory declaration appears in the material.[23] In this statement, the brother says ‘…I have a very close relationship with [the Applicant]’.[24] The brother says the ‘Applicant has had long connection with the church and he often work voluntarily for the church.[25] In this statement, the brother goes on to say ‘If he deported, I believe my aging [sic] mother would respond negatively as [the Applicant] has been very close to his mother. My family would suffer if [the Applicant] has to be deported as we will constantly anticipate the worst of him should he lives [sic] in Chile’.[26]

   [23] R1, pp. 784 – 786.

   [24] R1, p.  784.

   [25] R1. p. 784.

   [26] R1, p. 785.

3. Further in this statement, the brother says ‘Under the compelling and compassionate ground, and considering the anticipated separation trauma experience by my family if [the Applicant] is to be deported, I greatly appreciate to consider [the Applicant] to remain in Australia as reasonable, appropriate and necessary’.[27]

   [27] R1, p. 785.

4. The evidence around these immediate family members seems genuine and convincing to the extent that the Applicant must surely have had a loving relationship with these immediate family members prior to his removal into prison and then immigration detention. That said, it seems the Applicant – as a result of his offending pattern and consequential removal from the community – has been the reason for the lack of a closer relationship between him and them. In other words, he has caused himself to be distanced from them rather than them drifting away from him. I am satisfied that if returned to the community, the Applicant would – provided he refrains from further offending - resume a pattern of contact and closeness with these immediate family members.

5. I am of the view that the Applicant’s ties with these immediate family members comprising his mother, brother, sister and three nieces now militate in favour of a strong level of weight in his favour pursuant to this Primary Consideration 3. This finding is predicated on the limiting proviso that each of the people representing these immediate ties being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.

   Paragraph 8.3(2)(b): Strength, nature and duration of ties with family or social links

6. This paragraph looks at the strength, nature and duration of the extent of any ties the Applicant may have with (1) other family members; or (2) social contacts/links in Australia. The limiting proviso on this inquiry is that these two categories of people with whom the Applicant may have ties must be Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.

7. While I cannot find any evidence from extended family members in the material, there is evidence from what we could now loosely call ‘social ties’. They comprise the following:

   ·John Brennan: is the Prison Chaplain at the Wooroloo Prison Farm at the Acacia Prison. Mr Brennan’s statement was made on 26 May 2021 and appears in the material.[28] He refers to the Applicant having ‘…very close ties with his mother, sister and nieces and as always has this relationship with his family’.[29] Mr Brennan adds that the Applicant ‘… has always been a wonderful contributor and supporter to our Christian faith community…’.[30] If deported, Mr Brennan says the Applicant will ‘… lose all of his family connections and medical support on which he so much depends… [and that it]… is absolutely crucial, in a humane way… that [the Applicant] remain here in Perth’. Mr Brennan did not give evidence at the instant hearing and the Respondent was thus denied the opportunity of testing his evidence in cross-examination;

   ·Brett Butler: is also a Chaplain at the Acacia Prison. There are two statements of his in the material.[31] The latest of these two statements is dated 16 September 2024.[32] Mr Butler says he first met the Applicant many years ago following the Applicant’s arrival at the Acacia Prison. Mr Butler says that if allowed to remain here, the Applicant ‘… will honour the opportunity and trust afforded should he remain in Australia’.[33]Mr Butler did not give evidence at the instant hearing and the Respondent was thus denied the opportunity of testing his evidence in cross-examination;

   ·Peter Ripley: is also part of the Acacia Prison Chaplaincy Service and his statement appears in the material.[34] He first met the Applicant in mid-2021 and has maintained contact with him following the Applicant’s release from Acacia Prison in May 2022 and his following placement at the Yongah Hill Detention Centre. Mr Ripley says the Applicant ‘… has consistently maintained the view that he is an Australian’.[35] Mr Ripley says that if allowed to remain here, will facilitate the Applicant ‘…building a support network to continue his recovery journey, finding employment and continuing to deepen his experience of the Christian faith’.[36] Mr Ripley did not give evidence at the instant hearing and the Respondent was thus denied the opportunity of testing his evidence in cross-examination.

   ·I have already referred to Pastor Malcom Eastwick who provided both oral and written evidence to the instant hearing. In his written statement[37] he says he has known the Applicant since February 2024. He says the Applicant ‘…has shared honestly and openly many of the things he is ashamed of including his past crimes…’.[38] Pastor Eastwick believe the Applicant has ‘done his time, for his crime… and is now reformed’.[39] He says the Applicant ‘…should be allowed to remain here, so he can again be reunited with his family and friends and to be given opportunity to prove that by God’s grace he is a ‘new creation’”.[40]  His oral evidence could be distilled into (1) his belief that the Applicant has changed and is entitled to a fresh start in this country and that (2) ‘…mercy and grace as well as justice’ should now dictate an outcome whereby the Applicant can remain in this country.

   [28] R1, pp. 135 – 136.

   [29] R1, p. 135.

   [30] R1, p. 135.

   [31] R1, pp. 137; and A1. 

   [32] A1.

   [33] A1.

   [34] A2.

   [35] A2.

   [36] A2.

   [37] A4.

   [38] A4, p. 1.

   [39] A4, p. 3.

   [40] A4, pp. 3 – 4.

8. I will cautiously find the Applicant has a limited measure of social ties with the above dot-pointed people. They are all people whom the Applicant has met while removed from the community and they all came to meet the Applicant in their roles as providers of Chaplaincy services to the Applicant during his incarceration. That is not to suggest that these people should not now be regarded as ‘social ties’ of the Applicant but that one should be circumspect about the extent to which they will remain actual ‘ties’ if the Applicant is returned to the community. That said, I am of the view that this paragraph 8.3(2)(b) militates in favour of the allocation of, at best, a moderate level of weight to the strength, nature and duration of the Applicant’s ties to Australia. This finding is predicated on the limiting proviso that each of these four dot-pointed people representing these ties being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.

   Paragraph 8.3(2)(a): Additional factors to take into account

9. This component of Primary Consideration 3 requires me to look at how long the Applicant has resided in Australia taking into account the following factors:

   (i) whether the Applicant arrived here as a young child? [41] The Applicant arrived in Australia when he was five years old. He has lived here for a period of about 40 years. I will find the Applicant did arrive here as a young child and that this component of paragraph 8.3(2) does augment the weight allocable to his ties to this country;

   (ii) whether the Applicant began offending soon after arriving here? [42] The Applicant arrived here as a five year-old in March 1985 and recorded his first criminal convictions  in Australia (as an adult) in the late 1990’s. He thus did not begin offending soon after arriving here. Thus, the weight allocable to the Applicant for this Primary Consideration 3 cannot be impugned on the basis of him offending soon after arriving here;

   (iii) the time the Applicant has spent contributing positively to the Australian community during his time here.[43]  In his oral evidence to the instant hearing, the Applicant spoke of having worked as a general factory hand in the past and that he was confident he would find the same or similar work in the community now. I will find the Applicant has a reasonably good work history in this country. It seems clear that he is a relatively keen contributor to his faith-based community. On the basis of his employment and community contributions, I will find that this component of paragraph 8.3(2) of the Direction affords a moderate level of weight towards a finding about the strength of his ties to Australia.

   [41] Paragraph 8.3(2)(a) of the Direction.

   [42] Paragraph 8.3(2)(a)(i) of the Direction.

   [43] Paragraph 8.3(2)(a)(ii) of the Direction.

10. Accordingly, I am of the view (and I find) that based on my analysis of the evidence around subparagraph 8.3(2)(a) of the Direction, sub-paragraphs 8.3(2)(a)(i) and (iii) assist the Applicant while sub-paragraph 8.3(2)(a)(ii) of the Direction does not impugn any weight allocable to him for Primary Consideration 3. Therefore, the specific sub-paragraphs 8.3(2)(a)(i) and (iii) serve to augment the weight I have already allocated to the Applicant pursuant to the earlier-applicable paragraphs comprising paragraph 8.3(1) and 8.3(2)(b) of the Direction respectively relating to his ties to immediate family members in Australia and his ties to social contacts in Australia.

    Conclusion: Primary Consideration 3

11. I have referred to the three relevant components of this Primary Consideration 3. I am of the view, after having analysed the evidence relevant to each of those three components to which the evidence applies, that the totality of that evidence points to a strong level of weight in favour of this Tribunal setting aside the Decision Under Review.

    PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

12. This Primary Consideration requires a decision-maker to consider what impact a decision to refuse or not revoke cancellation of a visa will have on children who are and will continue to be under the age of 18 years of age at the time of the decision.[44] The Direction further requires that the best interests of each child must be considered individually if there are more than one minor child/ren identified.

    [44] Paragraphs 8.4(1) and 8.4(2) of the Direction.

13. In assessing the best interests of each child/ren, a decision-maker is required to take into account:[45]

    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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

    h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

    [45] Paragraph 8.4(4) of the Direction.

    Identification of, and evidence around, relevant minor child/ren

14. As I have earlier recounted, the two relevant minor-aged children comprise his two nieces who are:

    ·Child K; she is 17 and will turn 18 later this year;

    ·Child A; whom the Applicant recalls to be 14 years of age.

15. It seems clear that the Applicant will most likely resume a loving uncle role in the lives of these  two nieces if returned to the community. The evidence from both the immediate family members and the Chaplaincy witnesses is that the Applicant did enjoy a close bond with these children and the rest of his immediate family before his removal from the Australian community and there is little or nothing to suggest that this will not be resumed if he achieves a positive outcome in the instant hearing.

    Application of factors at paragraph 8.4(4) of the Direction to the two relevant children 

16. Sub-paragraph (a): these two children clearly know the Applicant as their uncle. While the relationship has not been parental and while there has been a long period of his physical absence from their lives, it should not be found that there has not been a palpable and durable relationship between him and them thus far in their lives. This sub-paragraph (a) militates in favour of a strong level of weight to the Applicant.

17. Sub-paragraph (b): it is unlikely that this Applicant will play a positive parental role in the future lives of these children. Rather, his role will be limited to that of the loving uncle. The further point is that he has a limited amount of time to play this particular role until both children turn 18. Child K turns 18 later this year and Child A will turn 18 in about 3-4 years. This sub-paragraph (b) militates in favour of a moderate of weight to the Applicant.

18. Sub-paragraph (c): there is no evidence about any extent to which these children have been impacted by the Applicant’s offending or would in future be affected were he to re-commit similar offences. I will put this sub-paragrpah (c) to one side and render it neutral for present purposes.

19. Sub-paragrpah (d): the sister’s evidence seems to point to an expectation that these two children have in terms of resuming their relationship with the Applicant as their uncle. The logical inference is that both of these children would be adversely impacted by his removal to Chile. As against that, the reality is that the Applicant would be able to maintain contact with them via telephonic and/or electronic means. This sub-paragraph (d) militates in favour of a moderate of weight to the Applicant.

20. Sub-paragraph (e): the Applicant’s sister already fulfills a parental role in relation to both of these children. She has done so without the assistance of a domestic partner because she was divorced some three years ago. This sub-paragraph (e) should be put to one side and rendered neutral for present purposes.

21. Sub-paragraph (f): we do not know the views these two children about the Applicant’s removal to Chile. We do have the evidence of the sister and can infer from that evidence that the children might very well have a preference for the Applicant to remain in Australia and to be a present and loving uncle in their lives. This sub-paragraph (f) militates in favour of a moderate of weight to the Applicant.

22. Sub-paragraphs (g) and (h): the evidence is silent about any of the elements appearing in both of these sub-paragraphs both of which should be put to one side and rendered neutral for present purposes.

    Conclusion: Primary Consideration 4

23. I have sought to apply the evidence to the relevant componentry of paragraph 8.4(4) of the Direction. Having regard to the extent to which that evidence now speaks to the best interests of (1) Child K; and (2) Child A, I arrive at a finding that, overall, a strong level of weight should be allocated to the best interests of these two identified minor-aged children about the extent to which they would be affected by the Applicant’s permanent removal to Chile. I thus arrive at a finding that a strong level of weight is allocable to this Primary Consideration 4 in favour of the Applicant.

    PRIMARY CONSIDERATION 5:  EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

24. The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[46] The Direction further explains:

    ‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[47]

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

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

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

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

26. This Applicant has breached the Australian community’s expectations by his record of very serious criminal offending in this country which is cumulatively evidenced by a significant number of very serious breaches of the Australian criminal law. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.

27. The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[48]

    a) acts of family violence; or

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

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

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

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

    f)worker exploitation.

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

1. The Applicant’s criminal history does contain convictions that fall within the auspices of certainly at least one of the abovementioned sub-paragraphs of paragraph 8.5(2) of the Direction.[49] He has multiple convictions for crimes against Police Officers. I am satisfied that the totality of the Applicant’s offending (as an adult) comprising some 180 offences committed across an offending history running for over two decades is so serious that the Australian community would expect the Australian Government to refuse to set aside the mandatory cancellation of his visa.

   [49] That being paragraph 8.5(2)(d)

2. The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(5), (6) and (7) of the Direction. I have distilled those factors to comprise:

   a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa (paragraph 5.2(5));

   b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time (paragraph 5.2(5));

   c)Australia may afford a higher level of tolerance towards criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age (paragraph 5.2(6));

   d)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen (paragraph 5.2(7)); and

   e)the inherent nature of the non-citizen’s conduct is so serious that it displaces even strong countervailing factors militating in favour of a positive visa outcome for a non-citizen even in circumstances where the non-citizen does not pose a measurable risk of harm to the Australian community (paragraph 5.2(8)).

3. In relation to sub-paragraph (a) of the immediately preceding paragraph [82], the term ‘limited stay visa’ is not defined in the Act. Here, the Applicant held a Class BF transitional (Permanent) visa until it was mandatorily cancelled on 25 May 2021.  As the Applicant continued to hold this Visa until it was mandatorily cancelled, it can be safely concluded that this Visa permitted the Applicant to remain in Australia without any end point on his stay. Further, it can also be concluded that if his Visa was not mandatorily cancelled in May 2021, the Applicant would have continued to hold the Visa and thus remain in Australia indefinitely. As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[50] Therefore this sub-paragraph (a) is not applicable to the Applicant.

   [50] Walker v Minister of Home Affairs [2020] FCA 909 at [29].

4. In relation to sub-paragraph (b) of the abovementioned paragraph [82], the Applicant has spent 40 years in Australia since arriving here in mid-1985 aged five years. He has spent about 90% of his life in this country and is currently aged 45 years. He has a reasonably good work history in Australia. He has not fathered biological children in this country. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(5) of the Direction.

5. In relation to sub-paragraph (c) of the abovementioned paragraph [82], I repeat that the Applicant arrived in Australia as a five year old in mid-1985. Therefore, he has spent most his life in Australia and did come here at a very young age. This means the Australian community’s level of tolerance of criminal or other serious conduct by this Applicant is raised.

6. In relation to sub-paragraph (d) of the abovementioned paragraph [82], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the sheer scope and nature of his offending (committed as an adult) and the resulting harm from the totality of that conduct, has been of such a very serious magnitude as to dispel any applicable countervailing considerations.

7. In relation to sub-paragraph (e) of the abovementioned paragraph [82], I am of the view that the totality of the Applicant’s unlawful conduct in this country has been sufficiently serious such as to displace any strong countervailing considerations militating in favour of a positive visa outcome. I have found that the Applicant poses a very high recidivist risk and that the harm resulting from any recommission of his offending would be so serious such as to render that risk unacceptable to the Australian community were he returned to it.

8. Having regard to the above discussion around sub-paragraphs (a)–(e) (inclusive) referenced in paragraph [82] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the sheer scope and very serious nature of the totality of his offending, this Primary Consideration 5 compels a finding that the community expects the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa. I so find.

   Conclusion: Primary Consideration 5

9. Primary Consideration 5 confers a very heavy level of weight in favour of this Tribunal affirming the Decision Under Review.

   OTHER CONSIDERATIONS

   Other Consideration (a): Legal consequences of the decision

10. In the event of his removal to Chile, the Applicant refers to being fearful of harm from lawless ‘gangs’ he says would present a danger to him. As best as I understood his evidence, these ‘gangs’ were not people who would specifically harm the Applicant because, for example, of any past political profile his family may have in Chile. Rather, the Applicant referred to those ‘gangs’ as presenting a threat to the Chilean community more generally. I do not understand the Applicant’s evidence about these gangs to rise to the point of him making any claim for protection that would potentially engage Australia’s non-refoulement obligations pursuant to this Other Consideration (a).

11. He does not hold a favourable protection finding. It is still open to him to apply for a protection visa. Neither the bar in section 48A of the Act or the prohibition in section 501E of the Act prevent him from doing so. Given the Applicant has this capacity to apply for a protection visa, this Tribunal can defer its assessment of whether non-refoulment obligations are owed to him.[51]

    [51] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 7 at [29]-[30].

12. The protection issue aside, it is fair to say there will very likely be the potential for a specific consequence(s) arising from an adverse outcome for the Applicant in the instant matter. If unsuccessful in this Tribunal, he will be permanently excluded from re-entering Australia. Two likely consequences then result. First, to the extent irreversible exclusion constitutes a legal consequence of this decision, such a contention does not activate the terms of paragraph 9.1 of the Direction. If the outcome in this Tribunal is adverse to the Applicant, the law is plain and clear: section 501E of the Act would prohibit the Applicant from making an application for another visa with the exception of a protection visa.[52]

    [52] Section 501E(2) of the Act.

13. Second, irreversible exclusion from Australia is likely to give rise to personal consequences for the Applicant such as: (1) he may experience emotional harm about permanent exclusion but such a factor should be rightly considered in the section of these Reasons relating to impediments he might face upon a forced return to Chile; and (2) he will be separated from his immediate family and social ties he has to this country but I have already considered those matters pursuant to paragraph 8.3 of the Direction.  

14. Accordingly, while there may well be legal (and other) consequences for the Applicant if unsuccessful in this Tribunal, it would be unsafe to allocate anything more than moderate weight to those legal (and other) consequences.

    Other Consideration (b): Extent of impediments if removed

    Factors to be taken into account

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

    (a)the non-citizen’s age and health;

    (b)whether there are any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

16. Paragraph 9.2(1)(a): the Applicant is 45 years of age and in his middle years. He has unresolved illicit substance abuse issues and a diagnosis of schizophrenia. To the extent he may require treatment and support for those symptoms in Chile, he will have available to him the same level of publicly available health services as his available to other citizens of Chile. My finding is that the Applicant’s age is not an impediment to his removal, but that the state of his symptomatology in relation to his illicit substance abuse and his schizophrenia does constitute and impediment. The extent of this impediment derives from the relative difference between the public healthcare available to him in Australia compared to that in Chile. To whatever extent this disparity in healthcare may be an impediment, it is not insurmountable impediment.[53]

    [53] See R1, p. 20, [74].

17. Paragraph 9.2(1)(b):  the Applicant has been in Australia for 90% of his life since the age of five years. His knowledge of Spanish is now surely limited because (1) he last spoke that language as a mother tongue 40 years ago; and (2) his exposure to Spanish is most probably limited to whatever conversations he has had in Spanish with his immediate family and any other people of the Chilean or Spanish speaking South American diaspora in Australia. I do not consider the Applicant will face any significant cultural impediment upon a return to Chile. To the extent he will face a language barrier if returned to Chile, I do not think this impediment is insurmountable.

18. Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in Chile. First, with reference to economic support, the Applicant will be entitled to such government support as is available to other citizens of Chile. He has spoken of the skills he has acquired while remuneratively working in Australia to stand him in good stead of finding work here. It is not unreasonable to suggest those skills will make it possible for him to find remunerative work in Chile. The question of economic support in Chile is, at worst, a possible but not insurmountable impediment to his return and re-settlement there.

19. Second, with reference to medical support available to him in Chile, to whatever extent he may require publicly available support for his illicit substance abuse and schizophrenia issues he will have access to publicly available healthcare that would be generally available to other citizens of that country. I have found that there may be a disparity between the public health system in Chile compared to that which the Applicant has come to know in Australia.  This is not to suggest that Chile is entirely devoid of public healthcare services.[54] The question of medical support in Chile is, at worst, a possible but not insurmountable impediment to his return and re-settlement there.

    [54] See R1, p. 20, [74].

20. Third, with reference to social support available to him in Chile, it should be noted that due to the 40 years of his life he has spent in Australia, the Applicant is likely to be faced with a lack of socially supportive contacts in Chile. While the Applicant does appear to have family in Chile, he does not seem to have remained in contract with them or any other contacts of a social nature. It is likely the Applicant’s return and resettlement in Chile will be impeded by a lack of social support available to him there. In my view, this is the most significant of the impediments he will face if removed to Chile.  It is not an insurmountable impediment, but it will be more difficult to overcome that any of the other impediments I have identified.

    Findings about impediments

21. My findings about impediments are as follows:

    ·the Applicant’s age is not an impediment. His symptomatology around illicit substance abuse and schizophrenia is an impediment but not an insurmountable one;

    ·there is no cultural barrier impeding his removal. The language barrier is an impediment but not an insurmountable one.

    ·the question of economic support in Chile is, at worst, a possible but not insurmountable impediment to his return and re-settlement there.

    ·the question of medical support in Chile is, at worst, a possible but not insurmountable impediment to his return and re-settlement there

    ·in terms of social support in Chile, I have found that the Applicant will experience an impediment in this regard and while I think such impediment will be the most difficult one for him to overcome, it is not an insurmountable impediment.  

22. Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers, a strong level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.

    Other Consideration (c): Impact on Australian business interests

23. To the best of my understanding of the material before me, there is no evidence (or contention) that the Applicant’s removal from Australia would impact any Australian business interest or would otherwise significantly compromise the delivery of a major project or delivery of an important service in Australia. I agree with the Respondent’s contention[55] and will put this Other Consideration (c) to one side and allocate neutral weight to it.  

    [55] R1,p. 21, [78].

    Findings: Other Considerations

24. The allocation of weight to the Other Considerations in the present matter can be summarised as follows:

    (a)legal consequences of the decision: is of moderate weight in favour of revocation;

    (b)extent of impediments if removed: is of strong weight in favour of revocation; and

    (c)impact on Australian business interests: is of neutral weight.

    CONCLUSION

25. Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test. 

26. In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:

    ·Primary Consideration 1: is of a very heavy level of weight in favour of affirming the Decision Under Review;

    ·Primary Consideration 2: is of a neutral level of weight in favour of affirming the Decision Under Review;

    ·Primary Consideration 3: is of a strong level of weight in favour of setting aside the Decision Under Review;

    ·Primary Consideration 4: is of a strong level of weight in favour of setting aside the Decision Under Review;

    ·Primary Consideration 5: is of a very heavy level of weight in favour of affirming the Decision Under Review.

27. I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 3 and 4 together with Other Considerations (a) and (b) are comprehensively and dispositively outweighed by the combined respective weights I have allocated to Primary Considerations 1 and 5.

28. A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.

    DECISION

29. Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 24 November 2022 to not revoke the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa. 

Date of hearing:

27 February 2025

Representation for the Applicant:

Self-represented

Solicitor for the Respondent:

Mr Jake Kyranis (Special Counsel)
Sparke Helmore

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT MATERIAL
R1	Respondent’s Remittal Bundle	21 November 2023	21 November 2023
R2	Respondent’s Amended Statement of Facts, Issues and Contentions (Under Direction 110)	17 June 2024	17 June 2024
R3	Respondent’s Supplementary T Documents	8 November 2024	10 December 2024
APPLICANT MATERIAL
A1	Brett Butler Letter of Support	16 September 2024	16 September 2024
A2	Peter Ripley Letter of Support	24 September 2024	24 September 2024
A3	Applicant’s sister (Hilda Timu) Letter of Support	16 September 2024	16 September 2024
A4	Pastor Malcom Eastwick Letter of Support	24 February 2025	24 February 2025
A5	Applicant’s Attendance Register	28 February 2024	28 February 2024