Cowgill and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 2162

Cowgill and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2162 (7 July 2021)
Division:GENERAL DIVISION
File Number: 2021/2488
Re:Heath Cowgill
APPLICANT

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

DECISION
Tribunal:Brigadier A G Warner, AM LVO (Retd), Member
Date:7 July 2021
Place:Perth

The Reviewable Decision, being the decision of the delegate of the Respondent dated 13 April 2021, not to revoke the cancellation of the Applicant’s Class BF-C Absorbed Persons (Permanent) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
......................[SGD]...........................................
Brigadier A G Warner, AM LVO (Retd), Member
CATCHWORDS
MIGRATION – Applicant is a 43 year old man who arrived in Australia as an 11 month old infant – decision of delegate of Respondent not to revoke mandatory cancellation of visa – character test – substantial criminal record – Applicant sentenced to five and a half years imprisonment – Direction No 90 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to Australian community – family violence – best interests of minor children in Australia – expectations of Australian community – international non-refoulement obligations – extent of impediments if removed – impact on victims – strength, nature and duration of ties to Australia – impact on Australian business interests – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 197, 499(1), 499(2A), 500(1)(ba), 500(6B), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(ii)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CFVG and Minister for Immigration and Border Protection [2017] AATA 1395
CZCV and Minister for Home Affairs [2019] AATA 91
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Convention on the Rights of the Child, opened for signature 2 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) – art 3, preamble
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) – paras 2, 3, 4(1), 4(2), 5.1, 5.2, 5.2(4), 5.2(5), 6, 7, 8, 8.1, 8.1(1). 8.1(2), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(b), 8.2(1), 8.2(2)(b), 8.3, 8.3(4), 8.3(4)(g), 8.4(2)(a), 9, 9.1, 9.3(1), 9.4.1(1), 9.4.1(2), 9.4.2(3)
REASONS FOR DECISION
Brigadier A G Warner, AM LVO (Retd), Member
7 July 2021
INTRODUCTION

This is an application seeking merits review in the Administrative Appeals Tribunal (the Tribunal) of a decision of a delegate of the Respondent dated 13 April 2021, refusing pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act) to revoke the mandatory cancellation of the Applicant’s Class BF-C Absorbed Persons (Permanent) visa (the visa) (G2/8-23) (the Reviewable Decision). The Applicant is a citizen of New Zealand whose visa had been cancelled on 18 November 2020 pursuant to s 501(3A) of the Migration Act (the Cancellation Decision) because the Applicant does not pass the character test by reason of his substantial criminal record and because he was serving a term of imprisonment for a crime against a law of the Commonwealth or a State (G3/196-202).
The Applicant lodged his application for review of the Reviewable Decision with the Tribunal on 21 April 2021 (G1/1–3). His application was made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions under s 501CA(4) of the Migration Act not to revoke a decision to cancel a visa. The Respondent accepts that the application was within time (Exhibit R1, para 7), and the Tribunal is satisfied that the application was lodged within time pursuant to s 500(6B) of the Migration Act and that the Tribunal has the jurisdiction to review the decision.
The Tribunal must decide whether it is satisfied that the Applicant passes the character test as defined by s 501(6) of the Migration Act, and if not, whether it is satisfied that there is another reason why the decision to cancel the Applicant’s visa should be revoked.
The Respondent contends (Exhibit R1, para 8) that:
… having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No 90 [see para 28 below] and the evidence and material presently before the Tribunal, the correct and preferable decision is that the delegate’s decision to refuse to revoke the cancellation of the applicant’s visa should be affirmed.
BACKGROUND
The Applicant was born in New Zealand in 1976 and came to Australia with his parents at the age of 11 months (G1/19; G3/195).
The Applicant has a lengthy criminal record comprising of over 130 separate convictions committed between 1996 and 2020 (G3/24–29).
On 17 April 1998, the Applicant was convicted of five counts of aggravated burglary, one count of attempted aggravated burglary, one count of receiving and two counts of stealing a motor vehicle. He was sentenced to six years imprisonment (G3/96–108).
On 6 February 2003, the Department of Immigration and Multicultural and Indigenous Affairs (now known as Department of Home Affairs) (the Department) issued the Applicant with a warning of possible future liability under s 501 of the Migration Act, and on 10 February 2003 the Applicant acknowledged receipt of that warning (G3/193–194).
On 11 September 2012, the Applicant was convicted of burglary and stealing. The conviction triggered a suspended sentence of six months and one day previously imposed for driving while suspended, and the Magistrate sentenced the Applicant to a further two months to be served cumulatively (G3/91–95).
On 20 November 2012, the Department (then known as the Department of Immigration and Citizenship) issued the Applicant with a formal counselling letter warning that further criminal convictions could result in consideration of the cancellation of his visa. On 22 November 2012, the Applicant acknowledged receipt of the letter (G3/190–192).
On 6 October 2020 the Applicant received 54 separate convictions for stealing and other dishonesty offences including two counts of using a carriage service to menace, harass or cause offence (G3/24–27), culminating in a total custodial term of five and a half years (G3/24–27, G3/30–89).
On 18 November 2020 the Applicant’s visa was mandatorily cancelled (G3/196–202). On 26 November 2020, the Applicant made representations seeking revocation of the cancellation (G3/109–181), and on 13 April 2021, a delegate decided to not revoke the cancellation (G2/7–23).
On 21 April 2021, the Applicant applied to the Tribunal for a review of the decision (G1/1–3). In his application the Applicant claimed the delegate’s decision was wrong as follows:
I believe the decision is wrong. I can change my ways. I will not be of [sic] danger or criminally affect anyone after my release. Without support from my family I will not cope in another country. My children and partner do need me in their lives physically and emotionally. I will continue to seek support for my drug problems in every way possible (G1/2).
The Applicant is incarcerated at Karnet Prison Farm with his sentence due to expire on 26 May 2025. The earliest date that the Applicant could be released to parole is 26 May 2023.
THE HEARING AND EVIDENCE
The hearing was held on 24 June 2021. The Applicant was self-represented and was escorted by two prison officers who remained with him throughout the hearing. The Respondent was represented by Mr Arran Gerrard of the Australian Government Solicitor.
At the hearing, the Applicant gave evidence and was cross-examined. The Applicant also called Ms Kerry Dobson and Ms Adele Harrison to give evidence in support of his application. In addition to the provision of a witness statement (Exhibit A5), Ms Dobson gave evidence on affirmation and was cross-examined. The Tribunal has regard to Ms Dobson’s evidence under its discussions of the Direction No 90 considerations. In addition to the provision of a witness statement (Exhibit A4), Ms Harrison gave brief evidence on affirmation which is considered in the reasons which follow. The Respondent accepted Exhibit A4 and did not cross-examine Ms Harrison.
The Tribunal admitted the following documents into evidence at the hearing:
·The ‘G-Documents’ (G1–G6, pp 1–270);
·Supplementary ‘G-Documents’ (G7, pp 271–328);
·Applicant’s Statement of Facts, Issues and Contentions dated 4 June 2021 (Exhibit A1);
·Applicant’s submissions dated 18 April 2021 (Exhibit A2);
·Department of Home Affairs Notification of decision dated 14 April 2021, including enclosures (Exhibit A3);
·Letter of support by Adele Harrison (undated and unsigned) (Exhibit A4);
·Letter of support by Kerry Dobson dated 18 May 2021 (Exhibit A5); and
·Statement of Facts, Issues and Contentions of the Respondent dated 19 May 2021 (Exhibit R1).
At the commencement of these proceedings, the Applicant requested that particular material (located in the “G Documents and Supplementary G-Documents”) produced under summons by Western Australia Police Force, which related to family violence be omitted from evidence (Transcript/5).
The Tribunal had regard to paragraph 8.2(2)(b) of Direction No 90 and advised the Applicant that the material amounted to information or evidence from an independent and authoritative source, and that it was the Tribunal’s practice to give only minimal weight to such documents unless the non-citizen is taken to the material and is afforded the opportunity to comment on it (see Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 at [59–60]). The Tribunal also noted the obligation that the Applicant be “afforded procedural fairness”. The Applicant indicated that he had received the material and acknowledged that the material would be accepted into evidence.
LEGISLATIVE FRAMEWORK
Migration Act
The Migration Act provides powers for the Respondent to refuse or cancel visas on character grounds. In certain circumstances where a visa is cancelled under these powers, the Respondent can revoke that cancellation decision. This generally involves consideration of whether a person passes the character test, and if the person does not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test is set out in s 501(6) of the Migration Act and provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A ‘substantial criminal record’ is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or …
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)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.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) (Direction No 79).
The Tribunal notes that the Reviewable Decision was made by the delegate applying Direction No 79, which was the ministerial direction in force at the time of that decision. As there are no transitional provisions in Direction No 90, all decisions made on or after 15 April 2021 must apply Direction 90. Therefore, the Tribunal must apply Direction 90 as it is the law and policy in place at the time the Tribunal is making this decision.
Paragraph 5.1 of Direction No 90 sets out ‘[o]bjectives’, with paragraph 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out principles that provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory visa cancellation under s 501CA of the Migration Act. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” para 4(1) of Direction No 90), must take into account the primary considerations identified in paragraphs 8 of Direction 90, and the other considerations listed in paragraph 9 where relevant to the decision (paragraph 6 of Direction 90).
Specifically, paragraph 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are the primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.

Paragraph 9 of Direction No 90 lists the other considerations that must be taken into account as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
Further guidance as to how a decision-maker should apply the considerations prescribed in Direction No 90 is contained in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Tribunal may revoke the Cancellation Decision if it is satisfied that the Applicant passes the character test.
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record”, as defined by s 501(7) of the Migration Act. It is relevant to the present matter that a person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (Migration Act s 501(7)(c)).
On 6 October 2020, the Applicant was sentenced to a term of imprisonment of five and a half years for stealing and dishonesty convictions (G3/24–27) and consequently has a “substantial criminal record”. Therefore, the Applicant does not pass the character test under s 501(6)(a) of the Migration Act.
In the statement of reasons not to revoke the mandatory cancellation of the Applicant’s visa, the delegate states:
In the representations/documents that Mr COWGILL submitted, he does not dispute the information in the National Crime History Check dated 5 November 2020 regarding his criminal conviction and sentence, or that he does not satisfy the character test (G3/8).
The Tribunal is not satisfied that the Applicant passes the character test.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, it must determine whether, having regard to the primary and other considerations detailed within Direction No 90, there is another reason why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
The Applicant’s reason for making this application to the Tribunal is given at paragraph [13] above. In written and oral submissions before the Tribunal the Applicant provided reasons in support of his contention that the Cancellation Decision should be revoked. The reasons listed below are distilled from the Applicant’s submissions and taken into account, together with the totality of his submissions, where relevant under the Tribunal’s discussion of the Direction No 90 considerations:
·It would be devastating and crushing for his partner and children if he were to be deported. The Applicant’s partner needs his help to raise their children. He would never put in jeopardy the opportunity for his children to grow up with their father.
·Insufficient weight has been given to the Applicant’s children in Australia, his partner, his mother and immediate family who are Australian citizens.
·No consideration has been given to the Applicant’s long-standing mental health conditions which have been diagnosed and medicated, resulting in a path to a drug-free lifestyle. His mental health has improved dramatically.
·The Applicant is not a violent offender and over the last 25 years has a number of large gaps in his offending history. He did not offend in the period 2012 to 2017 when he and his partner lost their stillborn son, Joseph.
·In prison (which the delegate does not recognise as a community) the Applicant has demonstrated changes to prevent further criminal or other serious conduct by remaining drug free, completing the Narcotics Anonymous 12 Step Workshop, engaging in vocational training and education, and holding a trusted Level 1 employment position.
·The Applicant acknowledges the warnings issued by the Department and is sorry and remorseful for his offending behaviour.
·The Applicant did not read the Department of Home Affairs notification dated 22 January 2020 that the Applicant holds an Absorbed Person Visa and was able to remain in Australia indefinitely as conditional. The Applicant has not offended since receipt of this notification.
·The Applicant has never held a New Zealand passport and has not travelled outside Australia since his arrival in 1977. He has no links with New Zealand. All his family support is in Western Australia.
·No weight should be given to the family violence provisions of Direction No 90 as they are not applicable to the Applicant’s family circumstances. Violence Restraining Orders put in place by Kerry Dobson were to remove the Applicant from the family home because of his drug issues.
·The Respondent overstates the seriousness of his conviction for breaching Family Violence Restraining Order on 19 October 2018 by ignoring the fact that the $5,000 fine imposed was as a global fine covering numerous other convictions.
The Respondent concluded submissions in the hearing as follows:
… the Tribunal should find that the protection of the Australian community and the expectations of the Australian community weigh heavily against the applicant. Furthermore, the fact that the applicant has engaged in family violence also stands against him. The applicant comes to the tribunal with three of the four primary considerations against him. It is in the circumstances of this case an insurmountable hurdle for the applicant to clear. Under those circumstances, the clear evidence of the primary considerations of the protection and expectations of the Australian community and evidence of family violence should be given determinative weight. The tribunal should not find that there is another reason to set aside the mandatory cancellation of the applicant’s visa (Transcript/56–57).
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1(1) of Direction No 90 states:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 90 further provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 4(2) of Direction No 90 defines “serious conduct” to include “behaviour or conduct of concern that does not constitute any criminal offence”.
Direction No 90 also provides the following examples of ‘serious conduct’:
Examples: public act that could incite hatred towards a group of people who have a particular characteristic, such as race; intimidatory behaviour or behaviour that represents a danger to the Australian community; involvement in activities indicating contempt or disregard for the law or human rights, or a history of serious breaches of immigration law.
(Emphasis omitted.)
Nature and seriousness of the conduct
Paragraph 8.1.1(1) of Direction No 90 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 the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
On 6 October 2020, the Applicant was sentenced to a term of imprisonment of five and a half years, following convictions for 54 offences committed between April 2018 and November 2019. The offending included:
gains benefit by fraud; possession of identification material with intent to commit an offence; stealing; used a carriage service to menace, harass or cause offence; person having been served with a data access order and without reasonable excuse, failed to obey that data access order; with intent to defraud forges a record; creating false belief; (att) gains benefit by fraud; and with intent to defraud by deceit attempted to gain benefit (G3/24–27).
In sentencing the Applicant, Flynn DCJ made clear that the Applicant’s offending was serious, stating in sentencing remarks (G3/78–82):
Insofar as the offences involve you stealing and involving fraud from people who you [have] never met, almost everyone in this room, in this community, is vulnerable because we rely on digital information to protect everything we own.
…
This is not an offence that’s serious because it occurs in a public place or it occurs in a home. This is an offence which is serious because it occurs everywhere.
…
So you compromised not only the individual feeling of security that we have that our assets are safe, but you undermined the community feeling that we are part of a banking system which is not going to collapse.
You involved a number of people and caused them harm….All of that makes this offending more serious.
…
What made this offence serious is literally the number of occasions that this occurred over a period of time.
…
What also makes the offence serious is the amounts of money involved.
…
It’s appropriate to note that these offences I can infer caused serious harm to individuals but also there is evidence of that.
…
This offending was premeditated. It was sophisticated. It occurred over a lengthy period of time. You were on bail in relation to counts 48 to 52. None of these offences can be regarded at the lower end of the offending, even taking into account the relatively small amounts of money involved for some of the offences. The offences that involved people you met really involved taking advantage of those people.
In remarking on the Applicant’s threats to Commonwealth Bank employees (in relation to the charge of used a carriage service to menace, harass or cause offence), Flynn DCJ stated:
There’s the nature and circumstances of the threats that you made to Commonwealth employees. They were associated with you impersonating somebody on that day and I can infer you were someone who was influenced by methylamphetamine on that day or desperate for access to funds.
I must take into account the impact upon those victims which I can infer would have been serious. You graphically threatened violence to two people who were doing their job (G3/88).
The Court transcript of 6 October 2020 provides the context of these threats (G3/58). Although the bank staff were not subjected to physical violence, the serious nature of the threats and the potential adverse impact on the recipients are evident:
Do you want me to come after you? I will. I have your fucking job by the end of the fucking week, mark my words. Yeah. I’ll have your job. I’ll have you sacked by the end of the fucking week. If you’re telling me that between you and the BOQ – or Bank of Queensland – youse [sic] are thinking that you’ll just play with this money and do what you like, and that me and my wife will suffer? I’ll make sure that someone down the track, the roles are fucking reversed, let me say this much to you. And I’m going to fucking give you an ultimatum. You either fucking do what I say or you cunts are getting terrorised. How the fuck am I supposed to pay for a fucking flight to Perth. Use your fucking brain, you dumb cunt.
You want me to come back to Perth? Book me a fucking flight. I’ll be at the bank first thing tomorrow and I’ll leave the shotgun at home. Any other way and I’m bringing it fucking with me. Mark my words, when I get off the plane, I’m coming for you cunts, you fucking mutt (G3/58).
In considering the nature and seriousness of the Applicant’s criminal offending to date, the Tribunal has regard to some previous sentencing remarks. When sentencing the Applicant to six years imprisonment for a series of burglaries and associated offences on 17 April 1998, Blaxell DCJ stated:
…the burglaries you committed are very serious. They were of a professional nature given the degree of preparation and planning, the method of implementation and the quantities of property stolen. It is also significant that the great bulk of the stolen property remains unrecovered.
The seriousness of the offences greatly outweighs any personal considerations that are relevant to sentence… (G3/107).
Further, on 11 September 2012, Magistrate Temby sentenced the Applicant to a term of imprisonment of eight months and one day following convictions for burglary, stealing, and previous driving offences. In his sentencing remarks, Magistrate Temby stated:
The facts in regard to this burglary are concerning. The motivation for Mr Cowgill to do what he did is understood. It seems that he was in desperate financial straits and he made a decision, and it was not an opportunistic crime. This was a thought-out crime to get the resources that he needed to meet his rent obligations. That’s why he went about doing what he did on this particular day.
Of course he intrudes upon the harmony of a person’s home and that person of course is left with the legacy of that thought and that unsettling aspect of the fact that they can’t feel safe – the occupiers can’t feel safe in their own dwelling because of this experience (G3/93).
The Tribunal concludes that the sentencing remarks above, and the sentences imposed, reflect the seriousness with which the courts viewed the Applicant’s offending behaviour.
Paragraph 8.1.1(1)(a) of Direction No 90 requires the Tribunal to take into account whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence, without limiting the range of conduct that might be considered serious by the Australian Government and community. Of relevance, the Tribunal notes that on 30 May 2001 in the Adelaide Magistrates Court, the Applicant was convicted of common assault on [a] person other than [a] family member and received a good behaviour bond for one year (G3/29).
The Applicant submits that he is not a violent offender, and explained the Adelaide common assault thus: “… I was visiting family in [A]delaide, my then 16 yo [sic] niece was confronted by a sexual predator, I assaulted him by pushing him against a wall and telling him to stay away from her” (Exhibit A1/3–4). The Tribunal considers this offence to be at the lower end of the violence scale.
Also having regard to its obligations under paragraph 8.1.1(1)(a) of Direction No 90, the Tribunal notes that the Applicant was convicted of Breach family Violence Restraining Order or Violence Restraining Order on 19 October 2018 and was fined (G3/28). Having regard to the relevant evidence, the Tribunal is of the view that this offence, taken by itself, does not sit squarely in the very serious conduct category comprehended by paragraph 8.1.1(1)(a), and considers it in more detail under a broader analysis pursuant to the second primary consideration (paragraph 8(2) of Direction No 90) below.
The Tribunal is required to consider the frequency of the Applicant’s offending, whether there is any trend of increasing seriousness, and the cumulative effect of repeated offending.
Although there are gaps in the Applicant’s criminal history, the evidence supports the Respondent’s submission before the Tribunal that:
… the applicant’s time in this country has been punctuated by a very large number of offences…about 158 separate offences…He’s had a number of substantial terms of imprisonment…and he’s had something in the order of $27,000 worth of fines issued against him. The offences are serious. They are longstanding. They have increased in number and in many respects severity (Transcript/7).
The Tribunal notes that the 54 convictions on 6 October 2020 for offences committed between April 2018 and November 2019 indicate both repeat offending and a significantly high frequency of offending. The Applicant has several convictions for drink driving, multiple drug related offences and multiple convictions for driving without authority. Repeat offending is further evidenced by convictions for steal motor vehicle in 1998 and 2002 and burglary in 1997, 1998 and 2012. Overall, the Tribunal finds that the frequency of the Applicant’s offending adds to its seriousness. Further, given the ongoing and serious nature of the Applicant’s offending, his entrenched illicit substance abuse and the resources expended in investigating and prosecuting the offences, it can be said that there is a cumulative effect of the Applicant’s offending.

In assessing the seriousness of the Applicant’s offending, the Tribunal must also consider whether the offending falls into other categories of serious offending prescribed in paragraph 8.1.1(1)(b) of Direction No 90 such as causing a person to enter into or be a party to a forced marriage; crimes against vulnerable members of the community (such as the elderly and the disabled), or government officials in the performance of their duties; and crime committed by the Applicant while in immigration detention. In the Tribunal’s view, the only category requiring consideration with respect to the Applicant’s offending is that of offences against vulnerable members of the community.
In sentencing, Flynn DCJ remarked on the broad vulnerability of the community to the Applicant’s offending. However, the sentencing remarks also make clear there were offences against vulnerable individual victims, thus contributing to the seriousness of the Applicant’s offending. Ms ST’s life was impacted adversely when she did not receive her pension and payments had been made to the Applicant purporting to be her (G3/81). Another victim, Mr SC, said in a statement to the police: “This matter has caused me a great deal of stress. I was widowed last year after my wife passed away and I am currently battling cancer. This has been a difficult year for me”. Mr SC went on to state that his health and general wellbeing had been negatively affected (G3/81).
Before the Tribunal, the Applicant accepted that there were victims of his offending who could be classified as vulnerable (Transcript/37).
With regard to paragraph 8.1.1(1)(g) of Direction No 90, the Applicant has been issued two formal written warnings (paras [8] and [10] above). In the Personal Circumstances Form dated 5 December 2020, the Applicant states that he received the 2003 warning whilst in gaol, and his mother advised him not to worry and that she would fix the problem (G3/137,140). The Applicant further states that he took the second warning seriously and that “… this was part of my going straight for some 4 years before the tragic loss of our son Joseph” (G3/140). Even taking into consideration the tragic loss of his son, the fact that the Applicant continued to offend so extensively and deliberately after these warnings contributes to a conclusion that the Applicant’s criminal behaviour is serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of Direction No 90 states, in part:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken)...
There is no statutory constraint on the way a decision-maker assesses risk apart from there being a rational and probative basis for the risk assessment (see BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68]; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41]).
The Tribunal’s task is described in Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at 389 [111] as follows:
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does.
(Footnotes omitted.)
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend (paragraph 8.1.2(2)(a) of Direction No 90).
The 54 recent convictions involve widespread harm to the community through identity theft, financial and property loss, loss of confidence in institutions, threats of violence and resultant stress and adverse effects on victims’ wellbeing. The Applicant’s previous offending behaviour caused unacceptable harm to the community through property loss and violence. Further, the Applicant’s entrenched drug abuse and serious traffic offending also raise the potential for significant harm. The community should not be expected to tolerate the risk and resultant harm should the Applicant commit similar offending in the future.
Likelihood of engaging in further criminal or other conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant re-offending if he were permitted to remain in the Australian community (paragraph 8.1.2(2)(b) of Direction No 90).
With regard to consideration of the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Applicant submits that:
·He is remorseful for his offending and will not offend again. He does not wish to jeopardise a future with his partner and his children growing-up without their father, and is mindful of his mother’s deteriorating health and his need to support her.
·He is currently a trusted prisoner with no prison charges and good work and conduct reports.
·In prison he has attended Narcotics Anonymous meetings and completed the Narcotics Anonymous 12 Step Workshop. The Applicant has been subjected to two drug tests which returned clear results.
·Since receipt of the 22 January 2020 notification that he holds an Absorbed Person Visa, the Applicant has not committed further offences.
·The Applicant’s depression and anxiety were diagnosed in 2019, and with treatment and medication his mental health has improved dramatically.
·The Applicant has gaps in his offending – a five-year period of no offending 2012 to 2017 and a 12-year gap from dishonesty offences 1998 to 2012.
The Respondent contends that there are cogent reasons for the Tribunal to be concerned about the Applicant’s risk of re-offending:
30.1Firstly, the applicant’s criminal history reveals an unrelenting disregard for the law and persistent criminality. It is of concern that he repeats similar offences and that those offences have escalated in gravity. The applicant has a significantly lengthy record. He has committed over 130 separate offences over a 25-year period. His offending is also recent with the applicant receiving 54 separate convictions in October of last year in respect of offences carried out over a period of 19 months between April 2018 and November 2019. The sheer number of offences are an aggravating feature of the offending as is the ultimate value of the ill-gotten gains being in excess of $100,000.
30.2. Secondly, the applicant has had an entrenched substance abuse problem since he was 16 years old. It is clear that his offending is inexorably connected to his addiction and the sentencing judge referred to it as having dominated his life.
30.3. Thirdly, the applicant has disregarded formal warnings from the Department in 2003 and 2012. In addition, the applicant’s biological father was deported in 2002 and his brother SC was deported in 2003 which should have stood as additional warnings that criminal conduct may result in removal from Australia.
30.4.Finally, there is no real evidence of significant rehabilitation save for a couple of certificates for attending Narcotics Anonymous meetings. Having regard to the applicant’s entrenched criminal history and substance abuse issues, the Tribunal can have no confidence that the applicant has engaged in proportionate and reassuring rehabilitation (Exhibit R1, para 30).
(Footnotes and names omitted.)
The Tribunal notes further concerns relevant to the likelihood of the Applicant reoffending:
(a)The Check Results Report (G3/24–29) records convictions for breach of probation (1997), Breach of Bail (2002, 2018), Breach of Bail Undertaking (2008, 2020) and Breach Family Violence Restraining Order or Violence Restraining Order (2018). The Tribunal notes the remark by Flynn DCJ when sentencing the Applicant on 6 October 2020: “You were on bail in relation to counts 48 to 52” (G3/82). This poor response to the court imposed orders suggests an unwillingness or inability to comply with directions, and potential risk of offending behaviour.
(b)The Applicant has an entrenched drug abuse problem from the age of 16. During his evidence he told the Tribunal that he used cannabis and methylamphetamine daily, and prior to incarceration was spending $100 and $300 to $400 respectively on those substances (Transcript/19–20). The Applicant further told the Tribunal that his offending was both to fund his addictions and as a consequence of his illicit substance use. To his credit, the Applicant has engaged with Narcotics Anonymous and completed the 12 Step Workshop (G3/173). He has been treatment assessed in prison and is scheduled to participate in the intensive addictions offending Pathways Program in the fourth quarter of 2021 (G3/169). Having regard to his history, including numerous drug related convictions, the Tribunal is of the view that the Applicant has outstanding treatment needs. Even should the Applicant successfully complete the Pathways Program, his abstinence from illicit substances on release to the non-custodial community and any resulting reduction in his risk of reoffending cannot be assumed.
(c)In relation to his mental health, the Applicant told the Tribunal: ”Since receiving treatment from the psychologist and medication for this medical and mental health condition, I can truly say my mental health has improved dramatically” and that “I am now fixed” (Transcript/15). Although the witness statements from the Applicant’s mother (Exhibit A4) and his partner (Exhibit A5) attest to positive changes subsequent to diagnosis and commencement of medication, there is no relevant corroborating medical evidence. Further, although the Applicant’s mental health conditions were diagnosed in mid-2019, by his own admission he did not commence the prescribed medication until he was imprisoned some five or six months later, instead self-medicating with illicit drugs (Transcript/32). Although the Tribunal accepts the Applicant’s claim that he has been compliant with medication in the structured prison environment, his compliance has not been tested in the broader community even when the opportunity was available to him.
The Applicant has taken commendable steps in prison to address his mental health and addiction issues. However, having regard to the Applicant’s history, it cannot be said that he presents no risk of reoffending, and the risk would escalate significantly should he relapse to illicit substances or discontinue mental health treatment. The level of risk must be balanced against the serious harm that could result should the Applicant offend further. Given the nature of the potential harm if the Applicant were to reoffend (see paras [68] and [69] above) and the likelihood of reoffending, the Tribunal considers the risk to the Australian community of the Applicant reoffending is unacceptable.
Tribunal’s conclusion on the first primary consideration
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that the first primary consideration, the protection of the Australian community, weighs strongly against revocation of the Cancellation Decision.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
The commencement of Direction No 90 introduced this separate primary consideration to which decision-makers must have regard. In paragraph 5.2(5) of Direction No 90, family violence is included in the type of conduct, or suspected conduct, where even strong countervailing considerations may not justify revoking a mandatory visa cancellation. Family violence is also prescribed in Direction No 90 as a factor to be considered with respect to the first primary consideration – protection of the Australian community (para 8.1.1(1)(a)(iii)), and the fourth primary consideration – expectations of the Australian community (para 8.4(2)(a)).
Paragraph 8.2 of Direction No 90 provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.       the extent to which the person accepts responsibility for their family violence related conduct;
ii.      the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.     efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Paragraph 4(1) of Direction No 90 defines “family violence” as follows:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a)an assault; or
b)a sexual assault or other sexually abusive behaviour; or
c)stalking; or
d)repeated derogatory taunts; or
e)intentionally damaging or destroying property; or
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
(Original emphasis.)
As noted above, paragraph 8.2(1) of Direction No 90 specifically states that the Government’s serious concerns regarding non-citizens who engage in family violence having the privilege of remaining in Australia are proportionate to the seriousness of the family violence involved.
The Respondent submits that the Applicant has received a conviction for Breach Family Violence or Violence Restraining Order on 19 October 2018, and notes: “Little is known about this conviction save for it attracted a very substantial fine” (Exhibit R1, para 37). On this basis, the Respondent contends that the second primary consideration weighs against revocation (Exhibit R1, para 38).
The evidence is that the Applicant’s partner has obtained four restraining orders against the Applicant (G7/314–319). The first order expired, and the other three orders were revoked subsequently. The Applicant contends that having regard to Direction No 90, the Tribunal should give no weight or consideration against revocation of the Cancellation Decision, for the following reasons (Exhibit A1, p11):
(a)the restraining orders, which were all revoked, were obtained to remove the Applicant from the family home due to his drug issues and Direction No 90 did not apply to his circumstances;
(b)the breach offence resulting in the conviction on 19 October 2018 only involved conversation and not threats, intimidation or violence. This is supported by the police statement dated 16 June 2018 which states: “The suspect stopped his vehicle and engaged in a verbal conversation with the victims… The accused then drove away”; and
(c)in relation to the breach offence,
...the respondent has made a mistake by stating the breach of violence restraining order on 19 October 2018 was a very substantial fine of $5000. The respondent would be fully aware that the fine was a GLOBAL fine, which included 12 other convictions ranging from false plates to possessing cannabis, that would normally attract fines ranging from $150 to $750 per conviction.
Paragraph 8.2(2)(b) of Direction No 90 requires that the non-citizen be “afforded procedural fairness” (para [19] above refers) with respect to family violence. The Tribunal notes that the relevant material was put to the Applicant and his partner, Ms Dobson, in cross-examination. The summonsed material was also mentioned in the Applicant’s written submissions.
Before the Tribunal Ms Dobson said that she loved the Applicant dearly and had not sought restraining orders lightly. Ms Dobson confirmed that the Applicant had been abusive, insulting, derogatory and verbally threatening towards her, but had never been physically violent. She said that the Applicant engaged in nasty drug-fuelled arguing and emotional violence (Transcript/41–43). The Tribunal notes that giving evidence was difficult and stressful for Ms Dobson and considers that she was a credible and honest witness.
Ms Harrison told the Tribunal that she had never known the Applicant to be violent (Transcript/47).
The Respondent stated in closing submissions with respect to family violence:
If one looks only to the definition of family violence, it sees reference to threatening behaviour, it sees reference to derogatory and insulting language and it refers to any of this being conducted in front of children as well. Very clearly, the applicant has been involved in family violence and that is another consideration that weighs against the applicant (Transcript/54–55).

The Tribunal accepts the Applicant’s contention at paragraph [81(c)] above as it is consistent with the record (G3/27–28). Having further regard to the evidence, the Tribunal accepts that the restraining orders granted to the Applicant’s partner were not as a consequence of actual physical violence, and also accepts the Applicant’s contention that his breach of the Family Violence Restraining Order in 2018 did not involve physical violence. That said, the Tribunal is of the view that the Applicant has a limited understanding of the meaning of family violence, the range of behaviours it might encompass, and its importance in the context of Direction No 90.
Tribunal’s conclusion on the second primary consideration
The Tribunal, of course, takes the issue of family violence seriously and Direction No 90 obligates the Tribunal to have regard to any such conduct in considering whether there is another reason why the Cancellation Decision should be revoked. While there is evidence that the Applicant’s behaviour meets the definition of family violence, it does not suggest that it is at the high end of the family violence scale or that the Applicant’s conduct constituted serious family violence. Although Ms Dobson’s evidence is that she was threatened by the Applicant on occasion, she did not express a concern about a recurrence of that behaviour and stated her commitment to support the Applicant in the community to the extent that she is able, should the Cancellation Decision be revoked or not. Therefore, the Tribunal finds that this second primary consideration weighs slightly against revocation of the Cancellation Decision.
Third primary consideration: The best interests of minor children in Australia affected by the decision (para 8.3)
Paragraph 8.3 of Direction No 90 provides, in part:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, 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.
Paragraph 8.3(4) of Direction No 90 continues to outline the factors that a decision-maker must consider when determining the best interests of a child:
(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 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.
The Tribunal is also mindful of Article 3 of the United Nations Convention on the Rights of the Child (CROC) which provides:
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
and the preamble which provides:
…the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding…
In the material before the Tribunal, the Applicant identified two children by a previous partner (G3/127), two children by his present partner (G3/127), a grandson born in 2019, five nephews and three nieces aged one to 14 years old (G131–132) as being relevant to this primary consideration.
In Exhibit R1, the Respondent stated:
The applicant has 4 minor children. The Minister accepts that the best interests of those children would lie with the applicant remaining in Australia. The Minister accepts that this is a consideration which is likely to be given some weight by the Tribunal although contends that in the final balancing and consideration of all relevant matters, it is outweighed by the other primary considerations (Exhibit R1, para 39).
Daughter R and Daughter T
The Applicant’s daughters with his previous partner, Daughter R and Daughter T reside with their mother. The Applicant told the Tribunal that his last contact with these children was “maybe three years ago” and that he was not fit to be in their lives because of his use of drugs (Transcript/21). The Applicant has not made submissions regarding any impact of non-revocation on these children. The Tribunal notes that Daughter R will have reached the age of 18 before the earliest date that Applicant could be released to parole, and Daughter T one month after that date.
While these children do not have an active relationship with their father currently, they may wish to do so during the remainder of their minor years. Accordingly, the Tribunal accepts that it is in the best interests of Daughter R and Daughter T for the Cancellation Decision to be revoked.
Daughter A and Daughter H
Daughter A and Daughter H reside with the Applicant’s partner. The Applicant states that he has “developed a very close and protective relationship with my daughters…If I am deported, this will have a crushing affect [sic] on my daughters, partner and myself” (G3/129).
In relation to Daughter A, the Applicant states that he has a trusting, honest and clear relationship, and that she “is a bright, intelligent girl [who] with 2 solid parents will have a fantastic future”. The Applicant also wrote that she “is clashing with her mother, with limited support this is progressively getting worse…a negative outcome could have a catastrophic effect on our teenage daughter” (G3/128).
The Applicant describes his youngest daughter, Daughter H, as a bright, playful, affectionate and boisterous little girl who loves her father’s hugs (G3/129–130). The Applicant expressed concern that should the Tribunal decide not to revoke the Cancellation Decision, Daughter H could suffer a life of confusion, sadness and depression (G3/130).
Ms Dobson relevantly writes:
[the Applicant] and I have two daughters, Daughter A 13 and Daughter H 3. We visit [the Applicant] as much as possible and [the Applicant] call us at least twice a day. Daughter A for a teenager has a very good relationship with her Dad, [the Applicant] works very hard to let a teenage girl know that her father loves her unconditionally. Very important for a teenage girl. Daughter H is 3 and loves the phone and has a strong bond with her father, [the Applicant] (G3/150).
(Names omitted.)
Ms Dobson told the Tribunal that she would do her best to foster and continue the Applicant’s relationship with their children. Ms Dobson said that subject to financial circumstances and her responsibilities towards the care of her mother, she would consider relocating to New Zealand should the Cancellation Decision not be revoked (Transcript/44).
Paragraph 8.3(4)(g) of Direction No 90 requires the Tribunal to consider whether a child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen. It follows that the Tribunal’s deliberations above under the second primary consideration are relevant here. Although there is no evidence of physical violence being visited on Daughter A and Daughter H, Ms Dobson in her oral evidence said that she had obtained restraining orders against the Applicant “To prevent the drug and alcohol abuse in our home. To protect my children” (Transcript/39). In cross-examination, Ms Dobson said that she did not want her children to be around drug-fuelled arguing (Transcript/42), and also told the Tribunal that her children were too young to be aware or worried about the restraining orders (Transcript/45). By his own admission, the Applicant had an entrenched and expensive daily drug habit prior to incarceration. The Applicant’s behaviour could not be considered to be in the best interests of his children. Any risk of future perpetration of family violence, even at the lower end of the scale (see para [87] above), and use of illicit substances while resident in the family home with minor children would detract from a conclusion, or the weight given to such a conclusion, that revocation of the Cancellation Decision is in the best interests of those children.
Applicant’s grandson
The Applicant’s 18-month-old grandson resides with his parents in the Applicant’s family home. The child’s paternal grandparents are deceased (G3/18). Although the Tribunal is of the view that the interests of the grandson would be best served by the revocation of the Cancellation Decision, this view attracts limited weight as the biological parents are both available to the child and the Applicant has not fulfilled any caring role to date.
Nephews and nieces
In his Personal Circumstances Form dated 5 December 2020, the Applicant describes his relationship with his nephews and nieces, detailing the family, sporting and school extra-curricular events he attends with them. The Applicant’s contacts and family relationships with these minor children are confirmed in the letters of support from his sisters (G3/153, G3/154). The Applicant notes that one niece attracts special counselling and entertainment due to profound autism (G3/133), and that his nieces and nephews require him to be their male role model (G3/134).
The Tribunal accepts that it is in the best interests of the Applicant’s nieces and nephews for the Cancellation Decision to be revoked, but again the Tribunal gives this consideration less weight because there is no evidence that the Applicant has any primary care or control responsibilities for his sisters’ minor children.
Tribunal’s conclusion on the third primary consideration
The Tribunal concludes that the best interests of minor children in Australia affected by the decision would be met by the revocation of the Cancellation Decision and the Applicant remaining in Australia. Taking into account all of the relevant considerations listed in paragraph 8.3 of Direction No 90 and having carefully and sympathetically balanced the evidence before it, the Tribunal finds that this consideration weighs moderately in favour of the revocation of the Cancellation Decision.
Fourth primary consideration: Expectations of the Australian community (para 8.4)
A decision-maker must take into account the expectations of the Australian community when making a decision under ss 501 or 501CA of the Migration Act. These expectations are set out in paragraph 8.4 of Direction No 90:
(1)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.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is 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:
(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.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)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 above, without independently assessing the community's expectations in the particular case.
As noted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208, Senior Member Morris summarises the view of the Full Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, and some of the language was also adopted in the drafting of Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR…
It follows that the Tribunal must give effect to the “norm” stipulated in paragraph 8.4(1) of Direction No 90, that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will in most cases weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
The Tribunal has regard to the helpful comment by Member Burford in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424, to the effect:
173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
The Applicant submits that he should be afforded higher tolerance because he arrived in Australia as an infant and that this should weigh in favour of the revocation of the Cancellation Decision (Exhibit A1/14–16).
Relevantly, the Tribunal has regard to the principle contained in paragraph 5.2(4) of Direction No 90, which provides that the community would afford a higher degree of tolerance to those who have lived in Australia their whole life or from a young age, as in the Applicant’s case. At the same time, the Tribunal must also take into account the principles in paragraph 5.2, that the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes, and that non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.
The Applicant has a significant and extensive record of offending covering a broad range of offences including but not limited to drugs, stolen or unlawfully obtained property, fraud, burglary, breaches of orders, driving without authority, common assault and stealing. He has repeatedly breached the trust of the Australian community through his offending behaviour. Despite the deportation of his father and two brothers, family obligations and responsibilities, formal written warnings of possible future liability under s501 of the Migration Act, and the imposition of prison sentences, fines and community dispositions, the Applicant has continued to offend. In the Tribunal’s view, this entrenched criminal conduct negates any greater level of tolerance the community may have afforded the Applicant given his arrival in Australia as an infant.
The Respondent submits that the primary consideration of the expectations of the Australian community weighs very heavily against the Applicant (Exhibit R1, para 42).
Tribunal’s conclusion on the fourth primary consideration
The Tribunal has found that the Applicant has committed serious offences. The expectation of the Australian community would be that the Applicant’s visa should remain cancelled. Overall, the Tribunal finds that the expectations of the Australian community weigh heavily against revocation of the Cancellation Decision.
OTHER CONSIDERATIONS
Paragraph 9(1) of Direction No 90 sets out other considerations which the Tribunal must take into account (see para [33] above).
International non-refoulement obligations
The Tribunal is required to consider whether Australia’s international non-refoulement obligations arise on any of the submissions, materials or evidence before the Tribunal (para 9.1 of Direction No 90). Neither party made any submission on this consideration and the Tribunal is satisfied that there are no non-refoulement obligations owed by Australia to the Applicant. This consideration is not relevant in this matter.
Extent of impediments if removed

Paragraph 9.2(1) of Direction No 90 states that:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen's age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Tribunal accepts that having been in Australia since infancy, the Applicant will face difficulties in returning to his country of citizenship. The Applicant’s mother described his situation as: “My son has no family ties or means of support in New Zealand, only the fact he was born there. [The Applicant] learnt to walk and talk in Australia. He has spent his whole life here” (G3/152).
In the Personal Circumstances Form dated 5 December 2020 (G3/144–145), the Applicant expressed a number of concerns should he be required to return to New Zealand. The Applicant stated that he:
·had no family, friends or prospects in New Zealand and believed that in time he would be homeless;
·would suffer a deterioration of his anxiety and depression, and would never see his partner and girls again;
·questioned whether his work skills and driver’s license would be recognised, and whether New Zealanders attached a stigma to someone being deported to New Zealand;
·did not know where to start or who to contact in considering housing and work; and
·has no knowledge of cultural customs and observances.
There is no evidence before the Tribunal that the Applicant has any health issues other than anxiety and depression, mentioned earlier in these reasons. There is no medical opinion or submission by the Applicant to suggest that treatment for the Applicant’s mental health conditions could not continue in New Zealand.
The Tribunal accepts that the Applicant would suffer emotionally as a result of separation from his Australian family members, particularly his partner and young daughters (also see the discussion of the third primary consideration at para [88]–[104] above).
The Respondent states in Exhibit R1 at paragraph 45:
The Minister concedes that the applicant is likely to experience some hardship as a consequence of returning to New Zealand. The Minister acknowledges that there are likely to be some transitional difficulties but those impediments would by no means be insurmountable. New Zealand is a country which is broadly comparable to Australia in terms of language, culture and access to employment, health services, education and social security. There are also organisations such as People at Risk Solutions (PARS) which provide assistance to persons who are removed from Australia to New Zealand and in this regard the respondent notes the comments of the Tribunal in CFVG and Minister for Immigration and Border Protection [2017] AATA 1395 at [90]:
The Tribunal also notes the considerable effort of organisations like PARS to assist deportees from Australia to New Zealand. This is a significant social undertaking and its befits to men like CFVG should not be underestimated.
(Footnote omitted.)
Although the Tribunal is in broad agreement with the Respondent’s contention, it notes that Australia and New Zealand differ in areas such as their indigenous peoples and national histories. The Applicant’s lack of familiarity in such matters may present challenges should he need to settle in New Zealand.
Overall, the Tribunal finds that the Applicant is likely to encounter some difficulty and hardship in establishing himself if he were to return to New Zealand, but these difficulties are not insurmountable. The Tribunal finds that consideration of the extent of impediments if removed, having regard to paragraph 9.2 of Direction No 90, weighs slightly in favour of revocation of the Cancellation Decision.
Impact on victims
Paragraph 9.3(1) of Direction No 90 provides:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no specific material before the Tribunal such as to inform this other consideration. However, having regard to the extensive, sophisticated and harmful nature of the Applicant’s offending, the Tribunal is of the view that some victims may be concerned if the Cancellation Decision was to be revoked. Noting that the requirement to afford the Applicant procedural fairness cannot be met, the Tribunal takes this consideration no further and assigns neutral weight to it.
Links to the Australian community
Paragraph 9.4 of Direction No 90 provides that:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1(1) of Direction No 90 states:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 9.4.1(2) of Direction No 90 further provides:
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The evidence is that the Applicant arrived in Australia as an infant and has resided here continuously since that time. His long-term partner, his children and other family members reside in Australia. The Applicant’s mother states in her witness statement: “We are a very close family and he has two younger sisters and many nieces and nephews whom he loves very much and has such close bonds with” (G3/152). In a letter dated 24 November 2020, the Applicant’s sister states: “[the Applicant] is my older brother and we are very close. Before this term of imprisonment, we would catch up regularly for BBQs and family events or just to talk” (G3/153).
The Applicant has been employed and has engaged in volunteer activities in the community. The Applicant’s mother and sisters describe him as hard-working (G3/152–154).
The Tribunal notes that, other than members of his family, the Applicant did not produce any evidence from members of the community in support of his application or to further evidence the nature of his links to the community.
The Respondent accepts that the Applicant has ties to this country and that they are likely to be strong (Transcript/56). The Tribunal agrees.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has some employment history in Australia and is undertaking training in prison to improve his prospects of employment on release. He has engaged in volunteer activities in the community. However, there is no evidence that a decision under s 501CA of the Migration Act would significantly compromise the delivery of a major project or delivery of an important service in Australia.
Taking the strength, nature and duration of ties to Australia and impact on Australian business interests together, the Tribunal considers that the Applicant’s links to Australia weigh strongly in favour of revocation of the Cancellation Decision.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act. The Tribunal has therefore considered whether there is “another reason” to revoke the Cancellation Decision, having regard to the primary and relevant other considerations in Direction No 90.
In approaching the exercise of weighing the relevant considerations, the Tribunal has regard to the guidance in CZCV and Minister for Home Affairs [2019] AATA 91. While that case involved the weighing of considerations under a previous direction, the guidance also applies to the exercise required under Direction 90 which is materially in the same terms. The Tribunal commented at [164]:
… The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word ”secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so…
In determining the weight to be assigned to each consideration, the Tribunal has taken into account all of the material before it and all of the Applicant’s personal circumstances and offending history.
In relation to the protection of the Australian community, the Tribunal has found that this primary consideration weighs strongly against the revocation of the Cancellation Decision, given the serious and extensive nature of the Applicant’s offending and the unacceptable risk to the Australian community of the Applicant reoffending.
The Tribunal found that the expectations of the Australian community would be that the Cancellation Decision be revoked. In making this finding the Tribunal took into careful account the question of whether the Applicant should be afforded extra tolerance due to his long residence in Australia. This primary consideration weighs heavily against revocation of the Cancellation Decision.
The Tribunal has found that the consideration of family violence weighs slightly against revocation of the Cancellation Decision.
The assessment of the primary consideration, the best interests of minor children in Australia affected by the decision, encompassed the Applicant’s children, his grandson, nieces and nephews. The Tribunal has found that this consideration weighs moderately in favour of revocation of the Cancellation Decision.
Turning to other considerations, the Tribunal found that the consideration of international non-refoulement obligations was not relevant in the Applicant’s case, and in relation to the consideration of the impact on victims, the Tribunal assigns neutral weight to it.
The Tribunal found the Applicant’s links to Australia, comprehending the strength, nature and duration of ties and the impact on Australian business interests, to weigh strongly in favour of the Cancellation Decision. The Tribunal found that the impediments the Applicant would face should he be returned to New Zealand weigh slightly in favour of revocation of the Cancellation Decision.
In weighing these primary and other considerations, the Tribunal concludes that although there are countervailing considerations that favour revocation of the Cancellation Decision, including the best interests of minor children, the Applicant’s links to Australia and the extent of impediments if removed to New Zealand, they are outweighed by the primary conditions of the protection of the Australian community, whether the Applicant engaged in family violence, and expectations of the Australian community. The Tribunal agrees with the Respondent’s submission that: “The applicant comes to the tribunal with three of the four primary considerations against him. It is in the circumstances of this case an insurmountable hurdle for the Applicant to clear” (Transcript/56).
Having regard to all the primary considerations and the relevant other considerations detailed in Direction No 90, the Tribunal is not satisfied that there is “another reason” why the Cancellation Decision should be revoked. The correct or preferable decision is to affirm the Reviewable Decision.
DECISION
It follows from all the above that the Reviewable Decision, being the decision of the delegate of the Respondent dated 13 April 2021, not to revoke the cancellation of the Applicant’s Class BF-C Absorbed Persons (Permanent) visa pursuant to s 501CA(4) of the Migration Act is affirmed.

I certify that the preceding 147 (one hundred and forty seven) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, AM LVO (Retd), Member

.................[SGD]........................................
Associate
Dated: 7 July 2021

Date of hearing: 24 June 2021

Applicant: Self-represented

Solicitors for the Respondent: Mr Arran Gerrard, Australian Government Solicitor

Date of hearing:	24 June 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Mr Arran Gerrard, Australian Government Solicitor