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

CVKB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1789 (11 June 2021)
Division:GENERAL DIVISION
File Number(s): 2021/1867
Re:CVKB
APPLICANT

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

DECISION
Tribunal:Member M O'Loughlin
Date:11 June 2021
Place:Adelaide

The decision under review is set aside and substituted with a decision to revoke the cancellation of the applicant’s visa.
.........................[Sgnd]...........................
Member M O'Loughlin
Catchwords
MIGRATION – cancellation of Class BB Subclass 155 Five Year Resident Return visa under section 501(3A) – applicant does not meet the character test – whether there is another reason to revoke the cancellation of the visa – consideration of Ministerial Direction No. 90 – interests of minor child weigh in favour of revocation – non-refoulement obligations owed to applicant – decision under review set aside.
Legislation
Migration Act 1958 (Cth)
Cases
Minister for Immigration and Multicultural Affairs V SRT [1999] FCA 1197
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
FYBR v Minister for Home Affairs [2019] FCAFC 185
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member M O'Loughlin
11 June 2021

The applicant is a citizen of Albania who has been resident in Australia since 2009, holding a series of visas.
On 18 February 2020 a delegate of the Minister administering the Migration Act 1958 (Cth) (the “Act”) cancelled his Class BB Subclass 155 Five Year Resident Return visa under s 501(3A)[1].
[1] Exhibit R1, p 274
The applicant applied for revocation of the decision to cancel his visa, but on 18 March 2021 another delegate of the Minister decided to refuse his request[2].
[2] Exhibit R1, p 1
The applicant now asks this Tribunal to review that decision not to revoke the cancellation of his visa.
Despite the undoubted seriousness of the applicant’s criminal behaviour, the Tribunal is persuaded that there are reasons to revoke the cancellation of the applicant’s visa because of the interests of his infant child and because the Tribunal is not satisfied that a pattern of offending has been established.
HEARING
On 9 April 2021 the Tribunal directed that the matter be listed for a 2-day hearing to proceed on 31 May and 1 June 2021. The direction further provided that the parties have leave to appear by video link.
The Tribunal understands that a check had been made by Tribunal staff to ensure that there was an effective video link with Mt Gambier prison, where the applicant was being held at the time of the hearing.
Although this check was made about 4 days before the start of the hearing, on the morning of Monday 31 May it was not possible for the Tribunal to establish a video link with the Mount Gambier prison.
The applicant indicated that he was content to proceed by audio link in order to enable the matter to proceed as efficiently as possible.
Ultimately no evidence was taken on that day as the prison was apparently unable to provide the applicant with the relevant documents, which the parties agreed would have made it impractical for the applicant to give evidence.
The documents were sent to the Mount Gambier prison by overnight bag and the taking of evidence began at 10:45am on the second day listed for hearing. Again, no video link was possible and the applicant’s evidence was taken by audio link alone.
Neither party complained that there was any compromise to the hearing by reason of there being no video link. Although video link is preferable to audio link for many reasons, there was no evident prejudice to either party in hearing the applicant by audio link only.
Applicant’s Evidence
The Tribunal was referred to various statements by the applicant contained in the tendered documents. Those statement were augmented by oral evidence.
The applicant was born in Albania on 10 February 1984.
When he was in his early 20’s he had a relationship with a girl who was from what he described as a “powerful” Muslim family.
The applicant’s family are Catholics, and so the relationship was kept secret because her family would have objected.
The applicant said that the girl became pregnant and their relationship was revealed to her family.
The applicant said that he was advised by his uncle to flee Albania as soon as possible and to get as far away as he could. The applicant told the Tribunal that he had no option in this regard.
He said that the cultural tensions between Catholics and Muslims were such that it would not even have been possible to seek permission to marry or offer to resolve the tensions in any other way.
In a statement dated 25 May 2021[3], the applicant stated in respect of his partner’s family, “… I needed to flee Albania before the brothers and relatives enacted harm towards me and my family.” He also said “I would have been severely beaten or even killed for my actions.”
[3] Exhibit A6, document 2, para 7
The applicant said that he came to Australia via Italy, with the aid of a false passport, arriving in Sydney on 16 May 2009. He would have been 25 years old at that time.
He moved not long after he arrived because there was an old friend of his father’s living in Adelaide. This man was able to put the applicant up for a couple of months.
The applicant had a background in building and related work in Albania and was able to find work painting and fixing gyprock.
He said that when he first arrived in Australia he spoke little English but he did speak Italian and that he met some Italian speaking men when he was out one night. He told the Tribunal that he was pleased to have met some friends and that soon he was seeing them and going out with them regularly.
He said that eventually they asked him to help them grow cannabis. They told him that he would not get into trouble as it was not considered wrong to grow cannabis in Australia.
He gave evidence that he watered cannabis plants that were grown at a rental property for about 3 months in 2011.This ceased when he was arrested in April 2011.
The applicant was charged with 3 offences, being one count each of cultivation of a commercial quantity of cannabis for the purposes of sale, possession of prescribed equipment and interference with an electricity meter.
He entered a plea of guilty to those charges.
The Tribunal has had regard to the sentencing remarks of the Chief Judge of the District Court of South Australia dated 7 February 2012 and relies on those remarks for the background to the applicant’s conviction[4].
[4] Exhibit R1, pp 221 - 224
Essentially the applicant was found to have been involved in a very serious offence and his conduct represented an important role in progressing the crop towards marketing, but was not conduct at the “top end” of the offence.
The Tribunal notes his Honour’s observation near the end of his remarks that the sentence put the applicant’s visa at risk and that such risk would be increased if the applicant were to re-offend.
The applicant said in answer to a question put by his representative that at that time he did not understand what that meant.
With a discount for an early plea the applicant was sentenced to a term of imprisonment of 3 years and 7 months with a non-parole period of 2 years. That sentence was suspended upon the applicant’s entry into a bond to be of good behaviour for 2 years.
There is no evidence that he breached that bond.
The applicant had started working at a restaurant, making pizzas, in December 2010. That work became full time in May 2011.
In the course of that work the applicant met his partner, “JS”, who was working at the same restaurant as a waitress.
The applicant’s evidence was that a relationship developed between them to the point that she brought her parents to the restaurant to meet him. He was introduced as her boyfriend. He could not remember when that was.
He said that he got along well with JS’s family. He said that they were friendly and respectful and that they were very supportive of him.
The applicant said that the relationship developed to the point that JS, who had been pursuing her main career of modelling, returned from Melbourne and moved in with him to a flat in North Adelaide.
In the meantime, the applicant said he had developed a cocaine habit. He said that this habit started in about 2015 when he was introduced to the drug by a friend at a time when he was feeling vulnerable due to problems with his family in Albania.
He said that until then he had been establishing deeper connections in Australia and in particular had been associating with a soccer club.
He said that when the problems with his family arose, he gave up things in his life and started taking drugs.
He said that he kept his drug use from JS but it increased to the point that he was spending about $500.00 per week on cocaine at a time that he was working at the restaurant and earning about $900.00 to $950.00 per week after tax.
He said that JS was generally unaware of his drug habit save for one occasion when she found him using the drug in their North Adelaide apartment. That was not long after she moved in with him in mid 2017.
On 26 August 2017 the applicant was searched by police at a bus station in Adelaide after a trip to Melbourne. He was found to be in possession of a quantity of cocaine and his home was searched. He was consequently charged with trafficking in cocaine.
He entered a plea of not guilty to this charge and proceeded to trial by Judge alone.
He was found guilty on 9 May 2019[5] and on 18 October 2019 he was sentenced to a term of imprisonment of four years and a non-parole period of 20 months was fixed[6]. Her Honour declined to suspend the sentence or order that it be served on home detention.
[5] Exhibit R1, pp 236 - 268
[6] Exhibit R1, pp 225 - 235
The applicant gave evidence that JS found out about the extent of his drug use at about this time.
The applicant said that JS and her family provided him with support including some help with the purchase of a home at Victor Harbor, which was apparently bought in February 2018.
The applicant gave evidence that the move to Victor Harbor had further positive effects, namely that he was away from the influence of those who had encouraged his drug taking, that he was able to engage with a local church, that he was closer to the support of his partner’s family and that he was able to start earning a living in disability support.
The applicant was apparently granted bail after his arrest in 2017 and it appears that his bail continued until he was sentenced and taken into custody on 18 October 2019.
During the period of about 5 months between his conviction and his sentencing, the applicant’s partner became pregnant with their first child and they were married on 7 June 2019[7].
[7] Exhibit R1, p 93
The applicant gave evidence about the emotional toll taken on him by not being present at the birth of his daughter.
He said that he cannot change what is done and that sometimes one cannot learn without making mistakes.
He said now that he has a daughter and family, he has a lot more to lose if he were to offend further.
He said that having been imprisoned he thinks perhaps the lesson is greater than if his sentence had been suspended and that he understands the role criminal law plays in Australian life. He said that it gives people faith and is very important.
In relation to his child, he said that he speaks to his wife and child about 5 times a day and that they visit him regularly. He said that he wants to be able to support them and his extended family.
He also said that he believes him being in prison has taken a huge mental and physical toll on his wife.
The applicant was also asked by his representatives about the problems he had in Albania.
In his statement dated 25 May 2021, the applicant refers to “… A feud existing between my family and that of a Muslim family over a girl. This situation still exists[8]”.
[8] Exhibit A6, document 2, para 11
The applicant said in evidence and in his statement of 10 March 2020 that his brother was shot at for reasons related to the feud,[9] although the Tribunal was not directed to any evidence in support of that statement.
[9] Exhibit R1, Attachment G, p 39
His testimony was to the effect that he would not be safe in Albania, that the girl’s family will not be satisfied until they kill him and there is no way of mollifying them. He also said that there is no effective way for him to live in Albania without coming to their attention and putting his life at risk.
In relation to the two trips he has made back to Albania to visit family, he said that they both took place at times of urgency when his parents were ill.
He said that he was able to stay in Catholic parts of the city with relatives and that the girl’s family presumably did not know he was in the country.
The thrust of his evidence was that although it had been possible to visit in this way it would not be feasible to return to Albania permanently and live like that.
He said the main problem is that he is Catholic and she was Muslim and that her family had been greatly angered by their relationship because of their differing religions.
He said that when he had returned to Albania he had not been able to move freely and had essentially stayed in hiding. He said that he believes that his life would be at risk if he returned.
He said that he believes that the girl’s family will only be satisfied if he is killed.
In relation to his general links to Australia the applicant said that he had been here for 12 years and that the strongest commitment he now has in his life is to his wife and child.
He gave evidence that they chose to buy a house in Victor Harbor so that they could live near his wife’s parents.
He said that when he was arrested, his wife’s family tried to consider matters from his point of view and he believes that they came to understand that, rather than being a criminal he was simply someone who did not understand.
The applicant said in evidence that once he and his wife moved to Victor Harbor he started doing voluntary work which made him feel that he was doing something positive.
He said that after he had done some voluntary work with disabled people, he was asked to help a family member, which he thought was a significant thing for the family to do.
The applicant also gave evidence about donations that he had been making to Australian Red Cross since January 2013. He said that he had made those donations because he wanted to feel as though he was helping someone.
In cross examination the applicant confirmed that his 2012 conviction in relation to cannabis cultivation related to offending behaviour that took place about 2 years after he arrived in Australia.
He agreed that at that stage he had already been granted a protection visa and was looking for work. He said that he had done some work fixing gyprock and painting but that this was not regular enough.
The applicant was reminded of his evidence to the Tribunal that he had been led to believe that the cultivation of cannabis was not wrong in Australia.
When directed to the sentencing remarks in relation to that conviction, he agreed that the Judge had noted his acknowledgement that he knew that what he was doing was wrong and that this was supported by him entering a tenancy agreement in a false name.
The applicant said that he didn’t even speak English at the time and took the blame for someone else. The Tribunal notes that the negotiations were conducted in Italian to at least some extent and that he does speak that language.
The applicant agreed that he had been told to look after the plants and that he would be paid.
He said his motivation to take part in that offending behaviour was to make money to pay his bills and lead a normal life.
He agreed that he had entered a bond to be of good behaviour after his sentence but said that he had not really understood that committing further offences would probably result in him being imprisoned.
He agreed that he had been sent a warning by the Department indicating that if he committed further offences, visa cancellation may be reconsidered. He was directed to a document and agreed that he may have signed it. That document was an acknowledgement of receipt of “Notice of decision not to cancel a visa under subsection 501(2) of the Act”, signed and dated 3 January 2013[10].
[10] Exhibit R1, p 271
The applicant was then asked about his conviction for trafficking cocaine.
He agreed that he was arrested in August 2017 at which time he was 32 years old. He said that his partner (now his wife) had moved in with him 3 or 4 months before his arrest. He said that at about the time of the arrest he was planning to start a family.
He agreed that he had entered a plea of not guilty to the charges of trafficking in cocaine and that he had given evidence at his trial that the drugs that were found in his possession were for his personal use.
He agreed that the Judge who heard the matter did not accept that the drugs were for his personal use.
He was directed to the reasons for the verdict in the criminal matter and agreed that the Judge was not satisfied that he or his partner were being honest in their evidence.
He agreed with the sentencing Judge’s remarks that trafficking in drugs is a serious offence and that drugs impact a “terrible toll” on the community. He also agreed that he had expressed his remorse to the court and accepted that he had obtained a substantial amount of cocaine, but maintained that he did not intend to sell the cocaine but use it himself and share it with friends.
He agreed that he had lodged an appeal in the Supreme Court of South Australia and that the appeal was against the finding that he had bought the drugs to sell them. He agreed that he had lost that appeal in March.
The applicant was also directed to page 4 of the sentencing remarks and agreed that he had stopped using cocaine when he was arrested in August 2017 but that he had started again about 6 months before he was sentenced (which would mean about the middle of April 2019) and had continued until about 3 months before he was sentenced.
He said that he had undertaken a drug program in the time before his imprisonment and agreed that during at least some of the time he was undertaking that program he was using cocaine.
He explained that he had not realised that there was counselling available and that his mother in law and wife had advised him.
He said that he had not used cocaine since he had been in prison and that being in gaol makes him stay clean.
The applicant was asked about work that he had undertaken while he had been in Australia. He agreed that he had worked fixing gyprock, painting, in a restaurant and as a carer.
He agreed that he had not worked since his imprisonment in 2019. He was asked whether his most recent conviction would lessen his chances of finding work in the disability sector. He said that he already has an offer so he does not believe that is so.
He agreed that he would need to undergo a police check and that the most recent conviction would show up on that. He said that he did not know whether he would be required to submit to further checks but that he would be happy to submit to them.
He agreed that he is not sure what effect the most recent conviction will have on his ability to obtain the relevant clearances in order to work with the disabled.
The applicant was also cross examined about the trips he had made to Albania since he had been living in Australia.
He said that he used Australian travel documents to go to Albania as he no longer had an Albanian passport.
He said the first trip was on 21 June 2010 for 2 months. The second was from 4 May to 7 June 2012 when he went to visit his brother in Italy and went from there to Albania. The most recent was from 28 June 2015 to 16 September 2015.

The applicant was asked about an incoming passenger card that he filled out when returning from the 2012 trip.
He acknowledged in his evidence that he had wrongly ticked “no” in response to the question “do you have any criminal convictions”. He said that he did not really understand the card and had someone help him to fill it out.
He was not able to explain why he submitted the card with that answer other than to say he didn’t really understand what the card was asking him.
The applicant was asked about the “feud” between his family and the family of the Muslim girl. He agreed that his parents had stayed in Albania and had not been harmed by the girl’s family.
He said that he did not believe that the police in Albania would help him if he returned. He said that the girl’s family remain powerful and to go to the police would be like “suiciding” himself.
The applicant agreed that since the granting of his protection visa he had been able to return to Albania twice and that he had stayed with his family. He agreed that he had been in the same city that her parents live.
He did not agree that his two trips to Albania since the grant of his protection visas suggest that he has no fear of harm in that country. He said that there was a risk but that his parents’ health made him take that risk.
The applicant was asked whether his parents or family had received threats and he said that his brother had been shot at. He agreed that that occurred in 2011. He said that the gap since the last manifestation of the threat did not mean that the threat is no longer real.
The applicant gave evidence that the shame he caused the girl’s family was great.
The applicant agreed that his parents still live in Albania and that he speaks the language.
He agreed that he was an adult when he left that country and that he had worked there as a painter.
He said that he has aunts and uncles there and is not sure whether his siblings are in Albania or not.
The Tribunal did not find the applicant’s evidence very persuasive. The applicant maintained that he was essentially innocent of the crime of trafficking in cocaine despite his conviction for that offence. His evidence about his drug use and the danger to him in returning to Albania was unconvincing.
Evidence of JS
JS gave oral evidence to the Tribunal on the second day of the hearing.
JS said she met the applicant when they were working at a restaurant. She was a waitress and he was working in the kitchen.
She said that they started as friends and the relationship developed naturally.
She said that they discussed marriage and plans for a family from shortly after the relationship started. She said she could not see the point in pursuing a relationship with someone who was “not on the same page” as she was in these matters.
She gave evidence that when the applicant was arrested in 2017 the impact was huge and that it was a great shock.
She agreed that the applicant had seen this as a wake-up call. She said that he had changed everything and that the arrest caused them to consider what they were doing with their lives even more. She considered that it provided further impetus to their plans to marry and start a family. She said that up until then she had been pursuing a career modelling and that she had not wanted to have children.
She agreed when it was put to her that the arrest has led to the relationship becoming more open as suggested by the applicant. She said that she had not been aware of the extent of his drug issues and that she believes she is now in a better position to offer support.
She said that the applicant’s absence while she was giving birth alone was difficult for her and that she did not imagine that happening. She said that she does the best she can to raise her daughter, but the applicant is the only person who can provide a proper father figure for her.
She said that she has been seeing a psychologist and she has been prescribed medication.
She said that she believes she is better placed to support him and that she will use strategies such as asking the applicant regularly how he is coping and whether he is using drugs.
Under cross examination she said they had remained in a relationship since it had originally evolved although she acknowledged that there had been fights and reconciliations during that time.
Although it was not clear whether they had been in a relationship at the time of the cannabis convictions in 2012, she agreed that she was not aware of them until 2020 when she read about those convictions in the lawyer’s papers. Presumably she refers to papers related to the Supreme Court appeal. She said that she had been surprised to learn about that conviction.
She said that she had first become aware of the applicant’s drug use when she had left a modelling shoot early and gone to their shared apartment. There she found him “snorting” cocaine from the living room table. She said that that was the only time she had seen him use drugs. She said that she had never seen him affected by drugs.
She was asked whether it seemed likely that he had been able to hide his drug habit from her since 2015 and she said that she believed it would have been quite possible as they were not living together and also because she was working as a model in Greece and Indonesia that she then moved to Melbourne for 6 months. She said that she moved in with him about 5 months before his arrest in 2017.
The Tribunal observes that the couple presumably started co-habiting in about March and that it was sometime after March 2017 that she found out about his drug use.
She gave evidence that she was not aware of him using drugs after his arrest although it was put to her that he had said that he had been using regularly.
She said that she was aware that he was in Australia on a visa but was not aware that he had been warned in 2012 of the effect further offending might have on his visa.
She agreed that she had given evidence at the trial in 2019 and that she is familiar with the Judge’s sentencing remarks.
She was asked to comment on the Judge’s findings that her evidence was not true and was directed to paragraph 127 of the reasons for verdict. When asked whether she tailored her evidence on the applicant’s behalf as suggested, she said that she gave honest answers and had nothing to add. She was further directed to paragraphs 162 and 163. In response to the Judge’s expressed impression that her evidence was in part untrue and fabricated to assist the accused, she denied that and asserted that she gave a true explanation for what had happened.
She said that she had been visiting the applicant in prison every chance that she got, but since her daughter had been born, she would make the trip to Mount Gambier every 3 weeks to a month.
She said that she spoke to the applicant about 5 times a day either on the telephone or by way of electronic communication and said she sends regular letters and photographs.
She was asked how she would guard against the applicant hiding any drug use from her as he had done in the past and said that it would not be as bad due to their support network.
She agreed that their daughter had been conceived in about May 2019.
She said that they’d been trying for a child for a while because it was discussed that they may be unlucky by which the Tribunal assumes she meant that the applicant may be imprisoned or lose his residence status.
The Tribunal found her evidence generally unconvincing. For example, her assertion that she “…never dreamt I’d be living this nightmare” in her statement[11], by which she refers to the difficulties of raising a child on her own with a husband in prison, is at odds with the evidence that they were trying for a child and that this was at about the time that the applicant was convicted.
Evidence of SS
[11] Exhibit A1, para 3
SS is the applicant’s mother-in-law. She gave oral evidence to the Tribunal.
She agreed that she provided a statement dated 26 May 2021[12].She confirmed that she adopts the contents of this statement as evidence in chief.
[12] Exhibit A6, document 4
She said that she and her family first met the applicant through her daughter who had met him working at a restaurant.
She said that she and her husband have another daughter who has special needs and that the applicant was always kind to her.
She said that when the applicant was arrested she felt as though she had let him down and that she felt that because they had welcomed him into their family they owed him their support and continued love.
She referred to her background in nursing and her Christian faith and said that she believed the applicant’s arrest strengthened the family bond.
She said that she believes the applicant has overcome his addiction while he has been in prison.
In cross examination she said that she first learnt about the applicant’s drug use when he was arrested. He said that she had never seen him take drugs and that she did not believe she had seen him under the influence of drugs.
She believed that she would have known if he had been using drugs in the past, as she had encountered drug users in her work as a nurse.
She said that she had learnt of the 2012 convictions after he had been arrested.
She said that she had tried to help him deal with this drug issues and said, for example, that he had been to counselling at Offenders Aid and Rehabilitation Services of South Australia (“OARS”).
When asked whether she was aware that the applicant had used cocaine after his arrest in 2017 she said that she was not.
Evidence of BS
BS is the applicant’s father-in-law. He gave oral evidence to the Tribunal and adopted his statement of 26 May 2021[13].
[13] Exhibit A6, document 1
He said that his first impressions of the applicant were that he was courteous and kind. He said he first met him 8 or 9 years ago.
He said that the applicant’s arrest was devastating to him and that it gave rise to so much uncertainty about the relationship between his daughter and the applicant. He said that his daughter, the applicant’s wife, has been greatly unsettled although she had remained positive.
He expressed his belief that since the applicant had been imprisoned he had displayed a strong positive attitude.
BS said that his family and the applicant are very close and they will be in constant contact should the applicant be released. He said that they will check on the situation constantly.
Under cross-examination this witness indicated that they only became certain of the applicant’s problems with drugs when he was arrested. He said that before his arrest, he did not have any firm suspicions although he occasionally encountered drug users in his job with a local government.
He said that he had not seen the applicant obviously affected by drugs. He further indicated that he did not suspect the applicant of being a full-time drug user.
He said he did not become aware of the 2012 convictions until after the applicant’s arrest in 2017.
SENTENCING REMARKS
The Tribunal has been directed to the sentencing remarks of the Chief Judge of the District Court of South Australia, in relation to the applicant’s conviction for offences related to cultivation of a commercial quantity of cannabis in April 2011[14].
[14] Exhibit R1, pp 221 - 224
The Tribunal has also been directed to the reasons for the verdict of the Judge in relation to the charges of trafficking in cocaine[15] and to the same Judge’s sentencing remarks[16].
[15] Exhibit R1, pp 236 - 268
[16] Exhibit R1, pp 225 - 235
In dealing with that evidence, the Tribunal has had regard to the statement by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs V SRT[17], at paragraph 40:
“It is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.”
[17] [1999] FCA 1197
This general approach appears to be supported in the leading decision of McKerracher J of the Federal Court in HZCP v Minister for Immigration and Border Protection[18], where he states, at paragraph 79:
“The Tribunal was correct in concluding that the evidence the appellant sought to rely upon, by which he impugned the facts found by the sentencing judge, could not be entertained.”
[18] [2019] FCAFC 202
The Tribunal observes that the Reasons for Verdict comprise the Judge’s deliberations and essential findings of fact as to the circumstances of the commission of the offence. The Tribunal makes the same use of the Reasons for Verdict as it does of the two sets of sentencing remarks.
The sentencing remarks in relation to the cultivation of cannabis in 2011 are relatively uncontroversial. That matter proceeded by way of a plea of guilty.
The applicant was found to have been involved in negotiations to lease premises in which to grow cannabis. The applicant gave evidence that his involvement in those negotiations was limited as his English was not good at that time. This is consistent with the Chief Judge’s findings that the negotiations were effectively controlled by another man.
The applicant also gave evidence that he did not believe that growing cannabis was seen as wrong in Australia.
The Chief Judge stated:
“You acknowledge that you knew that what you were becoming involved in was against the law, even though you may not have known how severe that offending was. That knowledge is supported by the fact that you knowingly entered the tenancy agreement in a false name.[19]”
[19] Exhibit R1, p 223
The Tribunal finds that the applicant was aware that he was acting unlawfully when he participated in the cultivation of cannabis that led to his conviction, but finds that he was not aware of how serious the offence was.
In relation to the 2019 conviction for trafficking in cocaine, the applicant insisted to the Tribunal that he did not intend to sell the drugs that were in his possession. He said that he was using about $500.00 worth of cocaine per week at that time and that the amount of the drug he was offered in Melbourne was at a good price and he wanted to take advantage of his casino winnings to obtain enough to last him for a few weeks.
He said that he might have shared some of the cocaine with friends but that he would not have sold any.
This was effectively the same as the defence he mounted in the District Court.
In her reasons for verdict, the Judge did not believe the applicant’s evidence as to the fundamental issue of whether he intended to sell any of the cocaine.
She also stated, at paragraph 166, that she was not satisfied on the balance of probabilities that the applicant did not intend to sell any of the cocaine found in his possession.
The Tribunal further notes that in her sentencing remarks of October 2019, the Judge said:
“As you were found in possession of a trafficable quantity of cocaine, you had the onus of establishing, on the balance of probabilities, that you did not intend to sell any of the cocaine. Having regard to all of the evidence I was not satisfied that you had discharged that onus.[20]”
[20] Exhibit R1, pp 225-226
The Tribunal observes that the applicant was not therefore proven to have intended to sell some or all of the cocaine in his possession. The amount of cocaine he had was such that it attracted a statutory presumption that the applicant intended to sell it. The applicant was unable to satisfy her Honour (on the balance of probabilities) that he did not.
Having considered the evidence in this matter including the applicant’s testimony and the documentary evidence to which it has been directed (in particular her Honour’s reasons for verdict and sentencing remarks), the Tribunal is satisfied that the applicant did intend to sell the cocaine that was in his possession in August 2017.
STATUTORY FRAMEWORK
Section 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not satisfy the character test and that person is serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a law of a State.
Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record as defined in s 501(7).
Section 501(7)(c) provides that a person has a substantial criminal record if that person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal finds that at the time the applicant’s visa was cancelled under s 501(3A), he had been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a law of a State.
The applicant quite properly conceded in submissions that he does not pass the character test.
The Tribunal finds that the applicant does not pass the character test as defined and that the Minister was therefore obliged by the terms of s 501(3A) of the Act to cancel the Applicant’s visa.
The Tribunal notes the concession made by the respondent in submissions that the applicant has made representations as contemplated by s 501(CA)(4) of the Act.
In view of the Tribunal’s finding that the applicant does not pass the character test, the Tribunal’s remaining task is to determine whether there is “another reason” why the original decision to cancel the applicant’s visa should be revoked (s 501(CA)(4)(b)(ii)).
In doing so the Tribunal must apply Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the “Direction”).
Paragraph 5.2 of the Direction provides a framework for decision makers. It emphasises that the grant of an Australian visa is a privilege and is made in the expectation that a visa holder will be law abiding and not cause harm to individuals or the Australian community.
It also makes it clear that non-citizens who engage in criminal conduct should forfeit the privilege of staying in Australia and that Australia has a low tolerance of criminal conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.
The Direction sets out “primary” and “other” considerations relevant to the discretion to revoke the cancellation of a visa.
The Direction provides that primary considerations should generally be given greater weight and that one or more primary considerations may outweigh other primary considerations[21].
[21] see commentary of Colvin J at [23] in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.
PRIMARY CONSIDERATIONS
Paragraph 8.1 - Protection of the Australian Community
The Direction relevantly provides that decision-makers should keep in mind the protection of the Australian community from harm and have particular regard to the principle that entering or remaining in Australia is a privilege that is conferred on non-citizens in the expectation that they will be law abiding and will not cause or threaten harm to individuals all the Australian community[22].
[22] para 8.1(1)
The Direction also provides that decision-makers should give consideration to:
·the nature and seriousness of the non-citizen’s conduct to date[23]; and
·the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct[24].
[23] para 8.1.1
[24] para 8.1.2
The Direction, at sub paragraphs 8.1.1(1)(a) and (b) sets out some examples of conduct that may be considered serious. The crimes of which the applicant has been convicted do not appear to fit within these sub paragraphs.
It is therefore incumbent on the Tribunal to consider with the other specified indicators of seriousness apply.
At subparagraph 8.1.1(c), the Tribunal is directed to consider the sentence imposed by the court for a crime or crimes. The applicant was given a suspended sentence for his conviction for cultivating cannabis. For the trafficking offence, the applicant received a sentence of 4 years imprisonment with a non-parole period of 20 months.

The applicant submitted that the penalties imposed are not at, or towards, the top of the range for such offences and that thus they should not be regarded as having been serious offending.
The Tribunal notes that in both cases the Judge felt constrained to impose a penalty of imprisonment. The Tribunal is satisfied that in each case the sentencing Judge believed the offending to be serious. The Tribunal is satisfied that the penalties imposed in each matter suggest serious offending on the part of the applicant.
At subparagraph 8.1.1(d), the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness is to be considered. The applicant’s convictions are for crimes that took place 6 years apart and the Tribunal is not satisfied that there is evidence of a trend of increasingly serious criminal behaviour. Although the later offence is more serious than the earlier offence, they are not sufficiently frequent to suggest a trend.
At subparagraph 8.1.1(1)(f) the Tribunal must consider whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. The respondent has submitted that an improperly completed incoming passenger card in which the applicant did not reveal his criminal convictions is relevant to subparagraph 8.1.1(1)(f). The Tribunal accepts the applicant’s explanation that he was largely assisted in filling out the card by someone else and that his English was so poor at the time that he did not really understand the representations that he was making.
The Tribunal is satisfied that the card was improperly completed but accepts that this was inadvertent and accords this consideration no weight.
At subparagraph 8.1.1(1)(g) the Tribunal is directed to consider whether the non-citizen has reoffended after being formally warned or otherwise made aware in writing about the consequences of further offending in terms of the non-citizens migration status.
The Tribunal accepts that the applicant was made aware in the sentencing remarks of 7 February 2012 that any repeat offending would give rise to an increased risk of his visa being cancelled.
The Tribunal was also directed to a letter sent to the applicant by the Department of Immigration and Citizenship, dated 12 December 2012[25], that included a “formal warning” in bold indicating that visa cancellation may be reconsidered if he commits further offences.
[25] Exhibit R1, p 269
The applicant signed an acknowledgement of receipt of that communication. The Tribunal does not accept the applicant’s evidence that he did not understand that criminal behaviour might have serious consequences for his visa status.
Tribunal accords this consideration some weight.
The Tribunal further has regard to the sentencing remarks in relation to the 2017 offence which Her Honour specifically states trafficking in in drugs is a serious crime.
Having balanced the considerations referred to in the Direction at paragraph 8.1.1(1) the Tribunal finds that the applicant’s criminal conduct is serious and accords this consideration significant weight.
At subparagraph 8.1.2, the Direction requires the Tribunal to consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
Subparagraph (2) sets out considerations that the Tribunal must take into account in assessing the risk posed by the applicant.
It is appropriate to observe that although no individual victims of the applicant’s criminal behaviour have been identified, the applicant has been convicted of both cultivating cannabis and trafficking in cocaine. As a general matter the Tribunal regards these offences as harmful to the Australian community.
Tribunal therefore finds that further offending of this nature by the applicant is likely to lead to relevant harm and so this consideration tends to a finding that the risk posed by the noncitizen is not acceptable and the Tribunal accords this consideration some weight.
The Tribunal is also directed to assess the likelihood of the applicant engaging in further criminal or other serious conduct. It is not possible to be accurate in making this assessment but the Tribunal notes that the applicant has undergone courses to address his alleged drug habit[26] and further that there has been frank discussion with his in-laws who believe they will be able to monitor his future behaviour and divert him from harmful habits.
[26] Exhibit A8
On balance in relation to the primary consideration of the protection of the Australian community, the Tribunal finds that this consideration weighs against revocation of the cancellation of the applicant’s visa.
Paragraph 8.2 - Family violence committed by the non-citizen
There is no evidence of relevant family violence committed by the applicant. The Tribunal affords this consideration no weight.
Paragraph 8.3 - Best interests of minor children in Australia affected by the decision
The applicant’s daughter was born in early 2020 and is currently about 15 months old. She will be under 18 years old the time of this decision and is therefore a minor child to be afforded consideration.
The Tribunal has not been presented with evidence that there are any other children affected.
The applicant and his wife both gave evidence that if the applicant is obliged to return to Albania his daughter and her mother will remain in Australia.
The Tribunal accepts that the child’s mother will have difficulty raising her daughter without the support of her husband.
At subparagraph 8.3(4) the Tribunal is directed to various factors that must be considered.
Although there is evidence that efforts have been made to establish a relationship between the applicant and his daughter, he has been in prison since before she was born and those efforts have necessarily been limited. Nevertheless, the Tribunal accepts that the efforts made to pursue a relationship have been as full as they could be in the circumstances and that they have been pursued both by the applicant and his wife.
The Tribunal further takes into account that the relationship is parental.
The applicant gave evidence that he expects to be released from prison by the end of July 2021. There is no evidence that the applicant will not perform his parental role upon his release and until the infant turns 18. This consideration must weigh in favour of a finding that the best interests of the infant will be served by revocation of the cancellation of the applicant’s visa.
There is no evidence to suggest that the applicant’s prior conduct or likely future conduct will have a negative impact on the child.
Although the applicant would presumably be able to maintain contact with his daughter using electronic means the Tribunal accepts that the applicant’s separation from the child will have a negative effect on her.
The applicant’s wife fulfils a parental role in relation to the child and will continue to do so. She gave evidence that she is restricted in her ability to do that although the Tribunal has reservations about the veracity of her evidence in general. Having said that the Tribunal accepts that the parental roles will not be fulfilled as fully if the applicant is not present.
The considerations set out at subparagraph (f), (g), and (h) do not appear to be relevant to this matter.
The Tribunal regards this consideration to weigh strongly in favour of revocation of the cancellation of the applicant’s visa.
Paragraph 8.4 - Expectations of the Australian Community
This consideration provides that there is an expectation in the Australian community that non-citizens will obey Australian laws while in Australia.
Both the applicant and the respondent submitted to the Tribunal that the decisions in YNQY v Minister for Immigration and Border Protection[27] and FYBR v Minister for Home Affairs[28] may be summarised as standing for the proposition that in identifying the expectations of the Australian community the Tribunal should have regard to the Direction rather than attempt to determine those expectations for itself.
[27] [2017] FCA 1466
[28] [2019] FCAFC 185
The Tribunal notes that those matters involve consideration of a previous Direction, but the consideration remains substantially the same for the purposes of Direction 90.
There are certain types of behaviour that are specified as being of a type that can and should give rise to an expectation that a non-citizen’s visa will not be revoked. Those specified behaviours are not relevant to this application. There is no allegation that the applicant has engaged in them.
The applicant has suggested in submissions that the fact that his behaviour does not fit within the specified categories means that this consideration “skews in favour of the applicant”. The Tribunal disagrees with that submission.
The Direction makes it clear at paragraph 8.4(1) that the Australian community expects that non-citizens will obey Australian laws while in Australia and that as a norm the Australian community expects that the Government not allow a non-citizen who engages in serious conduct, in breach of that expectation, to remain in Australia.
Although the applicant’s criminal conduct is not of a type specified in subparagraph 8.4(2), the Tribunal finds that the applicant’s criminal conduct is of a seriousness and type that breaches the Australian community’s expectation of his behaviour while in this country.
The Tribunal affords this consideration moderate weight.
OTHER CONSIDERATIONS
At paragraph 9 the Direction provides other considerations which must be taken into account where relevant. They are:
·International non-refoulement obligations;
·Extent of impediments if removed;
·Impact on victims; and
·Links to the Australian community, including:
oStrength, nature and duration of ties to Australia; and
oImpact on Australian business interests.
Paragraph 9.1 - International non-refoulement obligations
The applicant was granted a Class XA Subclass 866 Protection visa on 18 February 2010, on the basis that he was a refugee for the purposes of the criterion in s 36(2)(a) of the Act. He claims that he is a person to whom Australia owes non-refoulement obligations.
The applicant has given evidence that the circumstances that gave rise to his need to flee Albania, namely a “blood feud” arising from his relationship with a Muslim girl from a powerful Albanian family, remains a threat to him.
The respondent submits that the fact that the applicant was apparently able to return to Albania to visit his family undermines his claims that he fears harm there.
The Tribunal is not satisfied that the circumstances that gave rise to the applicant being granted a protection visa are no longer in play and therefore finds that Australia owes the applicant non-refoulement obligations.
That being the case, the respondent submits that the Tribunal is directed to have regard to the fact that cancellation of a non-citizen’s visa will not necessarily result in the removal of the applicant to Albania.
The Tribunal is not as well placed to consider non-refoulement issues as was the Tribunal dealing with the applicant’s protection visa application.
The Tribunal finds that the non-refoulement obligations that Australia owes to the applicant weigh in favour of revocation of the cancellation of his visa and accords this consideration some weight.
Paragraph 9.2 - Extent of impediments if removed
The Tribunal must consider the extent of impediments that the applicant may face if he is removed to Albania. The Tribunal is directed by subparagraph 9.2(1) to consider difficulties the applicant may face in establishing himself and maintaining basic living standards.
The Tribunal finds that there are no impediments arising from the applicant’s age and health. He is relatively young and there is no evidence that he is in anything other than good health.
The applicant left Albania as an adult and has worked in Albania and there is no reason to suppose that he would be at any particular disadvantage in returning to live there when compared to other Albanians, save for the effect of the “blood feud”.
The Tribunal has reservations about the restrictions that this will place on the applicant’s ability to live in Albania and ascribes this consideration little weight.
Paragraph 9.3 - Impact on victims
The respondent concedes that there is no evidence before the Tribunal about this matter which is not relevant. This consideration is afforded no weight.
Paragraph 9.4 - Links to the Australian Community
(i)Paragraph 9.4(1) - The strength, nature and duration of ties to Australia
The applicant was 24 when he came to Australia.
He has been in a relationship with an Australian citizen for about 9 years and they are now married. The Tribunal has heard evidence that he has established strong ties to her family, particularly her parents and sister.
The Tribunal has been provided with letters of support from friends and relatives of the applicant[29].
[29] Exhibit R1, pp. 155 - 178
There is also some evidence of ties that the applicant has established since moving to Victor Harbor and attending church there[30].
[30] e.g. Exhibit R1, p 158
The Tribunal considers that, collectively, these letters of support affirm that the applicant has close ties to Australian citizens and the community he is involved with.
The Tribunal is satisfied that the applicant has demonstrated relevant ties to Australia and accords this consideration some weight.
(ii)9.4(2) – Impact on Australian business interests
The applicant has submitted that his potential employment as a disability support worker for his sister in law upon his release from prison gives rise to a relevant consideration under this head. He also submits that his background in painting and the skills he has acquired in prison, being welding and fitness instruction, all suggest the potential to make a contribution to Australian businesses and the Australian economy.
There is no evidence upon which the Tribunal can assess the weight of these submissions. The applicant agreed in evidence that a police check would be required and that it would reveal his conviction. It is not clear to the Tribunal whether that will preclude him from working as a disability support worker as he was presumably previously cleared to do that work with a conviction for cultivation of cannabis.
There is certainly no evidence that the cancellation of the applicant’s visa would significantly compromise the delivery of a major project. It is presumably arguable that he is responsible for the delivery of an important service in Australia being his work as a support worker. Having said that, that is not a service that is related to Australian business interests in any way.
The Tribunal finds that this consideration weighs slightly in favour of revocation of the cancellation of the applicant’s visa.
CONCLUSION
The Tribunal has had regard to the primary considerations.
The protection of the Australian community from criminal or other serious conduct weighs against revocation of the cancellation of the applicant’s visa and the Tribunal accords it substantial weight.
The Tribunal finds that the conduct engaged in did not constitute family violence and finds that this consideration is not relevant.
The Tribunal finds that the best interests of minor children in Australia weighs in favour of revocation of the cancellation of the applicant’s visa and the Tribunal accords this consideration substantial weight.
The Tribunal finds that the expectations of the Australian community weigh against revocation of the cancellation of the applicant’s visa and accords this consideration a little weight.
Of the other considerations specified in the Direction, the Tribunal finds that international non-refoulment obligations weigh in favour of revocation of the visa cancellation and accords this consideration a little weight.
The Tribunal finds that the extent of impediments if the applicant is removed to Albania weighs against revocation of the visa cancellation.
The Tribunal finds that the impact on victims is not a relevant consideration in this matter.
The Tribunal finds that the applicant’s links to the Australian community, and in particular the strength, nature and duration of his personal ties weigh in favour of revocation of the visa cancellation and accords this consideration some weight.
Having weighed the considerations together and considered all of the evidence to which it has been directed, the Tribunal finds that the interests of the applicant’s infant child outweighs the other considerations and constitutes a relevant “other reason” to revoke the cancellation of the applicant’s visa.
DECISION
The decision under review is set aside and substituted with a decision to revoke the cancellation of the applicant’s visa.

I certify that the preceding two hundred and sixty nine (269) paragraphs are a true copy of the reasons for the decision herein of Member M O’Loughlin.

...........................[Sgnd].......................................
Legal Administrative Assistant

Dated: 11 June 2021

Date of hearing: 31 May & 1 June 2021

Representative for the Applicant:

Lochlan Reef MacNicol, WORK VISA LAWYERS

Representative for the Respondent: Ned Rogers, AUSTRALIAN GOVERNMENT SOLICITOR

[2021] AATA 1789

11 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Charge

Sentencing

Statutory Construction

Date of hearing:	31 May & 1 June 2021
Representative for the Applicant:	Lochlan Reef MacNicol, WORK VISA LAWYERS
Representative for the Respondent:	Ned Rogers, AUSTRALIAN GOVERNMENT SOLICITOR