Dayal and Minister for Home Affairs (Migration)

Dayal and Minister for Home Affairs (Migration) [2019] AATA 1235 (11 June 2019)
Division:GENERAL DIVISION
File Number: 2019/1654
Re:Dineshwar Dayal
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:11 June 2019
Place:Brisbane

The decision under review is affirmed.
...........................[SGD].............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of visa – expedited matter – Resident Return visa – where visa was cancelled under s 501(3A) because Applicant did not pass the character test and was serving a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 79 – risk of re-offending – risk of harm to Australian community – minor children – expectations of Australian community – strength duration and nature of ties – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166; 153 ALD 337
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66; 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Ministerial Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
11 June 2019
INTRODUCTION AND BACKGROUND

Mr Dineshwar Dayal (“the Applicant”) is a 49 year old citizen of Fiji. Movement records indicate that he first arrived in Australia on 6 June 1987 and was granted a Class BB Subclass 155 – Five Year Resident Return visa (“the visa”) upon his arrival into Australia.[1] The visa was renewed during his time here and was most recently granted to him on
[1] Exhibit 2, s 501 G-Documents, GG31, page 177-179.
[2] Ibid, G3, page 9.
23 March 2007.[2]
The Applicant has a criminal history in Australia which commenced in February 1988 and ran until March 2018.[3] His first sentencing episode came before the courts on 8 February 1988 while his final sentencing episode occurred on 7 March 2018. His offending has been both multi-faceted in nature and consistently committed during its 30 year duration. The offending culminated in him being sentenced to a term of five years’ imprisonment in March 2018.
[3] Ibid, G14, pages 109-112.
While serving the term of imprisonment, a delegate of the Minister, pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 19 June 2018 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[4]
[4] Ibid G3, pages 8-27.
On 2 July 2018, the Applicant wrote to the Minister’s department requesting a revocation of the decision to mandatorily cancel his visa.[5] The delegate of the Minister decided on
[5] Ibid G4, page 60; see also G9, page 74.
19 March 2019, pursuant to s 501CA(4) not to revoke the cancellation of the subject visa.
The Applicant lodged an application with this Tribunal on 27 March 2019 seeking a review of the abovementioned decision dated 19 March 2019 not to revoke the cancellation of his visa. The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations 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.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]
[6] [2018] FCAFC 151.
[7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8] I will address each of these grounds in turn.
[8] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
At the hearing, and as best as I recall his oral evidence,[9] the Applicant either conceded or otherwise readily accepted that his offending was extensive and serious. I do not recall any significant objection from the Applicant to the Respondent’s contention that he did not pass the character test. For the purposes of the character test, there is no getting around the Applicant’s criminal history. More particularly, there is no getting around the respective custodial sentences of five years, 12 months and six months imposed by the Brisbane Supreme Court on 7 March 2018.
[9] The Applicant did not file a Statement of Facts, Issues and Contentions (“SFIC”) (or equivalent), nor any other material in the case whatsoever.
The totality of the abovementioned custodial terms were ordered to be served concurrently. The pre-sentence period of 450 days that the Applicant spent in custody (from 12/12/2016 to 6/03/2018) was deemed to be time already served. The court ordered a parole eligibility date of 12 July 2018. It should be noted that the critical point for present purposes (i.e. the character test) is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[10]
[10] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application[11]. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[12]
[11] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.
[12] The Direction, sub-paragraph [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Justice Colvin in Suleiman v Minister for Immigration and Border Protection:[13]
Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[14]
[13] [2018] FCA 594.
[14] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(iii)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should, generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(v)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. In return, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph points out to decision-makers that mandatory cancellation without notice of certain non-citizen prisoners’ visas is consistent with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to 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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from his National Criminal Check which appears in the material.[15] As mentioned earlier, it is an offending history that spans a 30 year period.
[15] Exhibit 2, s 501 G-Documents, G14, pages 109-112.
The Nature and Seriousness of the Applicant’s Conduct to Date
I am of the view that the totality of the Applicant’s offending across its 30 year span can be readily categorised as very serious. He is 49 years of age, yet his criminal offending that has come before the courts for punishment/sentencing has featured in his life for virtually the entirety of his adulthood. It is clear that his offending has come to dominate the better part of his adult life.
In his oral evidence before the Tribunal, the Applicant was clearly cognisant of the very serious nature of his offending. He seemed to appreciate the nature and severity of what he had done and he readily accepted that his offending involved participating in activities that had the potential to cause catastrophic harm to other members of the Australian community.
The Respondent’s contention is that the Applicant’s conduct has been of a very serious nature and that, viewed in its totality, cannot be construed in any other way.[16]
[16] Exhibit 1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 8, paragraph [27].
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly or the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)…
(i)…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. There are specific episodes in the offending history of the Applicant that are clearly demonstrative of the violent nature of some of the offences he has committed:
·On 10 April 1995, at the Penrith Local Court, the Applicant was convicted of an assault in a domestic context. He entered into a recognisance in the sum of $500 not to assault, molest or harass or intimidate his victim. He was also fined $100.
·On 18 June 2015, at the Brisbane Magistrates Court, the Applicant was convicted of being in unlawful possession of weapons in the category of D/H/R, pursuant to s 50(1)(C)(I) of the Weapons Act 1990 (Qld). For this offending no conviction was recorded. He entered into a recognisance in the sum of $300 to be of good behaviour for a period of nine months.
·On 3 July 2015, at the Holland Park Magistrates Court, the Applicant was convicted for “SERIOUS ASSAULT/RESIST/OBSTRUCT – PUBLIC OFFICER”, pursuant to s 340 (2AA)(A) of the Criminal Code Act 1899 (Qld). No conviction was recorded for this offending, but the Applicant was placed on probation for an operative period of two years.
·
Also on 3 July 2015, at the Holland Park Magistrates Court, the Applicant was convicted for “GOING ARMED SO AS TO CAUSE FEAR”, pursuant to

s 69(1) of the Criminal Code Act 1899 (Qld). No conviction was recorded for this offending, but the Applicant was placed on probation for an operative period of two years.
There can be no question that the abovementioned profile of offences involve offending of a violent nature. As such, those offences can only be viewed very seriously. The Applicant’s violent offending is such as to attract the operation of this sub-paragraph (a) in favour of a finding that his offending is indeed very serious.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are viewed very seriously, “regardless of the sentence imposed”. On 9 February 2006, the Applicant was charged with breaching an order made pursuant to the Domestic and Family Violence Protection Act 1989 (Qld). This breach came before the Beenleigh Magistrates Court on 6 March 2006, resulting in no conviction being recorded but the Applicant being fined the sum of $400.

The material also reveals that on 11 February 2013, a temporary protection order was made against the Applicant at the Holland Park Magistrates Court pursuant to an application for protection made by his former wife. The grounds on which his ex-wife sought this protection order are as follows:
“6. Grounds for a protection order
…
Dineshwar physically hit me with a walking stick on Friday night after a verbal argument. He then asked my eldest son to drop him off at the pub and my son refused. He then physically hit my son…
…
Dineshwar hit my eldest son. I also believe he hit my middle son. My eldest son has specifically requested protection. We were advised by the police that he couldn’t apply for it that I had to.
…
9. Weapons
Does the Respondent have access to any weapons?... Yes [box ticked]
Knifes [sic] – he keeps it under his bed, in his vehicle and work bag.
Did the respondent use, or threaten to use, a weapon or another thing used as a weapon, during any incident of domestic violence?... Yes [box ticked]
He said he will kill me and the children and bury us in the backyard.
Has the respondent been issued with a weapons or firearms license? No

[box ticked].
”[17]
[17] Exhibit 1, Respondent’s SFIC, Attachment A, Summonsed Material, pages 6-13.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction clearly has application to the facts and circumstances of this conduct involving, as it did, the Applicant committing an act of domestic violence against his former wife and his son, who was aged 17 years at the time of the incident. The Direction makes it clear that crimes of a violent nature against women or children are to be viewed very seriously, regardless of the sentence imposed. Accordingly, on the basis of this sub-paragraph (b), the Applicant’s offending can be viewed as very serious.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that crimes committed against vulnerable members of the community, government representatives or officials are to be regarded as serious. On 11 October 2014, the Applicant took it upon himself to go armed in public so as to cause fear. The incident constituted a direct challenge to both the safety and authority of the intervening Police Officers and Queensland Ambulance Service officers:
“On the 11^th day of October 2014, the Queensland Ambulance Service (QAS) were called to attend [address redacted in relation to a suicidal male, Dineshwar DAYAL, the defendant in this matter.
Upon arrival at the residence, two QAS members [name redacted] and [name redacted] attended the residential home and entered the premises upon being directed to a bedroom at the front of the house by two male residents’. Upon opening the bedroom door they were confronted by the deft who was lying on the bed armed with a large gurkha kukri knife in his right hand. The deft held up the knife and told them to go away as he wanted to end it.
The QAS officers withdrew from the house for their own safety to their vehicle and called for Police to attend. They were unable to treat the deft.
A short time later QAS officers observed the deft exit the front door of the house now carrying the kukri knife and a large machete in his hands and started walking down the driveway towards them. The deft had two other males flanking him. QAS officer [name redacted] yelled at the deft and the two males to stop and for the deft to drop the knives. [Name redacted] repeated this command a number of times with no effect. The deft refused to drop the knives pointing them at

[name redacted]
. The deft and the two males continued to walk down the driveway towards the QAS officers. At the time a number of other residents in the neighbourhood had gathered out the front of the defts house to observe what was taking place. The defts’ driveway slopes down directly fronting onto the roadway of [Address redacted] and the deft was in clear view of the QAS officers and other members of the public.
Police from Calamvale Station arrived on the scene and observed [name redacted] calling out to the deft. Police then observed the deft armed with two large machetes walking down the driveway saying words similar to “Kill me, shoot me” and held the knives out. Police observed two other males with the deft who appeared to be attempting to calm and restrain the deft without success. The deft continued to walk towards Police who immediately presented their firearm and taser ordering the deft to drop the knives and for the other two males to move out of the way. This was repeated a number of times however the deft refused to drop the knives and one of the other males refused to move away. Police then deployed a taser on the deft causing him to drop the knives and fall to the ground. Police then moved in and restrained the deft without any further incident.
…”[18]
[18] Ibid, page 23.
This conduct clearly involves the Applicant committing a crime against “government representatives or officials…in the performance of their duties…” This sub-paragraph (c) provides that such offending must be regarded as serious. I so find.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1)) to the sentences imposed by the courts for a crime or crimes of a non-citizen/Applicant. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
The Applicant’s National Criminal Check demonstrates that his offending history has run from February 1988 until March 2018. His offending across this approximately 30 year period has been such as to attract the imposition of custodial sentences in the cumulative sum of six years and six months upon his sentencing in March 2018.
The imposition of the abovementioned custodial terms attracts application of this
sub-paragraph (d) of paragraph 13.1.1(1) of the Direction in favour of a finding that the sentences imposed by the courts for the crimes of this Applicant are supportive of a finding that his offending to date is of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required in an application of the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
I turn firstly to the frequency of the Applicant’s offending. His National Criminal Check demonstrates that the Applicant has found himself before lawful authority as a result of his offending on at least 16 occasions between February 1988 and March 2018. Some
37 offences were dealt with across the abovementioned 16 sentencing episodes. There can be no finding other than that the Applicant’s unlawful conduct has clearly and obviously been frequently and consistently committed.
The next component of this sub-paragraph (e) involves ascertaining whether the offending involves a discernible increase in its seriousness. The usual trend seen in criminal histories coming before the Tribunal in matters such as this usually sees the offender committing mostly summary, regulatory and otherwise low-level offences in the first quarter or first third of the history, with a following increase in seriousness - most often involving the commission of indictable offences - from that point onwards.
The Applicant’s criminal history seems configured in this way. The very serious escalation in the seriousness of the offending as the criminal history evolves is quite marked and concerning. Speaking broadly and most favourably for the Applicant, the first approximate 12-13 years of his offending history cannot be said to contain convictions for very serious offending. For the purposes of clarity, I will list his offending across this first period of his criminal history:
·8 February 1988 – unlicensed driving – fined $150;
·8 February 1988 – low range drink driving – fined $300, disqualified from driving six months;
·19 July 1989 – mid-range drink driving – fined $500 disqualified from driving 18 months;
·26 April 1990 – possess prohibited weapon – fined $200;
·26 April 1990 – possess prohibited drug – fined $200;
·21 October 1992 – supply false information – fined $400 plus court costs $45;
·21 October 1992 – unlicensed driving – fined $500, disqualified from driving for six months plus court costs ($45);
·13 October 1993 – possess firearm whilst unlicensed – fined $100;
·13 October 1993 – possess shortened firearm – fined $400;
·13 October 1993 – possess prohibited weapon – fined $100;
·10 April 1995 – assault (domestic) – recognisance ($500) to be of good behaviour for 12 months, fined $100;
·13 August 1997 – first instance offending for mid-range prohibited concentration of alcohol while driving a motor vehicle – fined $350 plus costs of court ($51); disqualified from driving until 13 February 1998;
·13 August 1997 – first instance offending – refusal to submit to breath test – fined $400 plus costs of court ($51): disqualified from driving until 13 February 1998;
·11 December 1997 – drive whilst disqualified – fixed custodial term of six months:11/12/1997 to 10/06/1998, disqualified from driving for two years;
·16 April 1998 – (appeal of sentence imposed on 11 December 1997) - appeal against conviction confirmed – in lieu that the Applicant serve 100 hours of community service (without conditions) – disqualified from driving for 12 months commencing 16/04/1998;
·22 June 1999 – driving while disqualified from holding a license – sentenced to a custodial term of four months commencing on 2 July 1999; disqualified from driving for three years;
·
22 June 1999 – driving a vehicle with a mid-range prohibited concentration of alcohol - sentenced to a custodial term of four months commencing on 2 July 1999; disqualified from driving for three years (the sentences imposed on

22 June 1999 were ordered to be served concurrently);
·16 November 2000 – obtaining a payment which was not payable to him – convicted and fined $1500;
The Applicant’s criminal history then takes on a different dimension of seriousness involving direct challenges to lawful authority, a more serious weapons offence, domestic violence offending, and repeated breaches of probation orders. This phase of his offending ran from 2006 to late 2017:
·6 March 2006 – Breach of domestic violence order – convicted and fined $400;
·18 June 2015:
ocommit public nuisance;
ounlawful possession of weapons;
ofor the totality of this offending, the Applicant entered into a recognisance of $300 to be of good behaviour for 9 months;
·3 July 2015:
oserious assault/resist/obstruct public officer in the course of their duty;
ogoing armed so as to cause fear
ofor the totality of this offending, the Applicant was placed on probation for a period of two years;
·18 March 2016 – breach of probation order imposed on 3 July 2015 – fined $100;
·10 November 2017 – further breach of probation order imposed on 3 July 2015 – fined $400;
The final phase of the Applicant’s offending is the offending that came before the Brisbane Supreme Court for sentencing on 7 March 2018. This final phase is by far his most serious phase of offending:
·7 March 2018:
opossessing anything used in the commission of a crime defined in part 2 of the Drugs Misuse Act 1986 (Qld) – offence committed on 19/10/2016;
ofurther charge of possessing anything used in the commission of a crime defined in part 2 of the Drugs Misuse Act 1986 (Qld) – offence committed on 9/12/2016;
opossession of property suspected of being the proceeds of an offence under the Drugs Misuse Act 1986 (Qld) – offence committed on 9/12/2016;
ofor the above summary offences, the Applicant was convicted but not further punished, having regard to the three custodial terms imposed by the Brisbane Supreme Court for the Applicant’s indictable offences on 7 March 2018;
·7 March 2018:
opossession of dangerous drug (schedule 1 or 2) – offence committed on 9/12/2016;
oproduce schedule 2 drug – offence committed on 9/12/2016;
oon both charges, a conviction was recorded and the Applicant was sentenced to a custodial term of six months;
·7 March 2018:
opossession of dangerous drug (schedule 1 or 2) – offence committed 9/12/2016;
oon this charge, a conviction was recorded and the Applicant was sentenced to a custodial term of 12 months;
·7 March 2018:
opossession of dangerous drugs (schedule 1) – of or exceeding schedule 3 but less than schedule 4 – offence committed on 19 October 2016;
opossession of dangerous drugs (schedule 1 or 2) (two charges) – offence committed on 19 October 2016;
opossession of dangerous drugs (schedule 2 drug quantity of or exceeding schedule 3) – committed on 19 October 2016;
opossession of anything used in the commission of a crime defined in part 2 of the Drugs Misuse Act 1986 (Qld) – offence committed on 19 October 2016;
oreceiving or possessing property obtained from trafficking or supplying – committed on 19 October 2016;
o
on all of the above charges, a conviction was recorded but not further punished, having regard to the three custodial terms imposed by the Brisbane Supreme Court for the Applicant’s indictable offences on

7 March 2018;
·7 March 2018:
otrafficking in dangerous drugs - offence committed between 5 September 2016 and 20 October 2016;
oon this charge, a conviction was recorded and the Applicant was sentenced to a custodial term of five years.
Applied to this Applicant’s offending history, I am of the view that this sub-paragraph (e) of Paragraph 13.1.1(1) of the Direction is supportive of a finding that the frequency and undeniable trend of increasing severity of the offending is such as to render his offending as very serious indeed.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect or effects does or does not demonstrate the seriousness of the offending. A first cumulative effect of the Applicant’s offending has been to draw his middle aged son into its orbit and to do so with very serious repercussions for that child (now an adult child). The son was actually a co-accused with his father on the day the latter was sentenced in the Brisbane Supreme Court on 7 March 2018. The learned sentencing judge who sentenced both the son and the Applicant was His Honour Douglas J, who said these things in his sentencing remarks:
“With you, [name of child redacted], with some doubt, because of the absence of clear evidence about your current circumstances and rehabilitation I am told you have undertaken by not reoffending or not reusing drugs, I propose to sentence you to three years imprisonment in respect of count 1 on indictment 1015 of 2017, but to fix an immediate parole release date. I say I do that with some hesitation. The reasons I do it are because of your youth, the evidence that you have had otherwise an unblemished childhood, and a successful career at school, and an attempt, at least so far, to study at university. You have reoffended once by breaching bail since the charges laid against you here, but I disregard that for these purposes.
I also take into account that you were acting at the dictation essentially of your father who led you astray when you were only 17 and that youth and immaturity seems to me to warrant giving you a further chance. You were given a further chance when you were first arrested and placed on bail then, which you abused by reoffending in December, and that was one reason why I doubted the appropriateness of giving you this chance now, but it seems to me that, based on what I have been told, inadequate as it may be, it is appropriate that I give you such a further chance of not going into actual custody.”[19]
[My underlining]
[19] Exhibit 2, s501 G Documents, G15, page 119, lines 12-29.
A second cumulative effect of the Applicant’s repeated offending is to demonstrate his lack of respect for the lawful authority governing the Australian community into which he now seeks re-admission. This lack of respect has manifested in a number of ways:
·Various breaches of orders for bail: The offending history shows the Applicant was placed on bail in October 2016 but that he “…continued to offend, as, when police attended on the premises again on 9^th of December 2016, they found cannabis and methylamphetamine in the house again, and that’s the subject of the second indictment, which has three counts of possession of drugs, two counts of cannabis and one count of methylamphetamine, and there are also summary charges stemming from that interception as there were in respect of the first search by police on 19^th of October 2016.”[20]
[20] Ibid, G14, page 115, lines 34-40.
·Repeated breaches of probation orders: On 3 July 2015, the Applicant was sentenced in the Holland Park Magistrates Court for offending involving (1) “SERIOUS ASSAULT/RESIST/OBSTRUCT – POLICE OFFICER” and (2) “GOING ARMED AS TO CAUSE FEAR.” For both of these charges, he was placed on probation for a period of two years. His offending history discloses two breaches of this probation order on 18/03/2016 and 10/11/2017, respectively. The authority supervising the Applicant’s probation made these observations in its report of 26 February 2018: “…Mr Dayal’s overall response to Probation was unsatisfactory. Contravention action is currently pending due to him failing to report on 24 October 2016. It is noted he dis-engaged from supervision from this time…Whilst subject to supervision, Mr Dayal’s response was marred by mental health instability, including periods of dis-engagement from supervision…Summary Mr Dayal dis-engaged from supervision on two occasions during the course of his order which has resulted in contravention action. It would appear Mr Dayal is not willing or unable to comply with the conditions of community based supervision and is therefore considered unsuitable for further orders…”[21]
[21] Exhibit 1, Respondent’s SFIC, Attachment “D”, Director of Public Prosecutions Report: Previous Community Based Supervision, page 56-57.
[My underlining]
·Other instances in the offending history demonstrating a refusal to follow lawful authority: The Applicant has either directly challenged or otherwise adopted an indifferent approach to lawful authority:
oOn 6 March 2006, he was convicted of the breach of a domestic violence order that had been made against him during the previous month;
oOn 3 July 2015, he was convicted of “SERIOUS ASSAULT/RESIST/OBSTRUCT – PUBLIC OFFICER.”
·The Applicant’s driving/traffic history demonstrates a lack of respect for lawful authority:
oThe offending/criminal history reveals the following number of driving offences:
·         8/2/1988: unlicensed driving;
·         19/7/1989: mid-range drink driving;
·         21/10/1992: driving whilst license cancelled;
·         13/8/1997: mid-range drink driving;
·         13/8/1997: refusal to submit to breath test;
·         11/12/1997: driving while disqualified;
·         16/4/1998: driving while disqualified;
·         22/6/1999: driving while disqualified;
·         22/6/1999: mid-range drink driving;
o
The traffic record reveals his driving privileges were suspended on

12 August 2017 and 2 March 2018.

A third cumulative effect of the Applicant’s repeated offending has seen both him and his co-accused and duly sentenced son, play their own integral roles in the propagation of seriously unlawful activity around the organised trafficking and possession of cannabis, methylamphetamine, MDMA and MDA. The Australian community ultimately bears the cost of this unlawful activity in two ways. At a macro level, as a result of the colossal impact on public finances arising from the effective gridlocking of the healthcare apparatus, the law enforcement apparatus and the judicial apparatus required to try and deal with the problem.
At a micro level, as a result of the untold histories of family disruption, extreme hardship and trauma, resulting from the adverse impact of these drugs on the very fabric of our society and its established structures. I cannot for a moment accept that either the Applicant or his son were not at all times aware of the adverse impacts of their unlawful activity on the community.
The application of this sub-paragraph (f) to the present factual matrix involving, as it does: (1) the Applicant drawing his own son into the orbit of his very serious offending; (2) a demonstrated and multi-faceted failure to respect lawful authority; and (3) participating in very serious unlawful activity that places both the entirety of the Australian community’s resources and individual Australian families directly in harm’s way, leads to no other finding than that the cumulative effect of the Applicant’s repeated offending is such as to render it very serious.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. The material discloses three such instances.
First, in respective incoming passenger cards dated 7 January 2005[22] and 8 June 2009,[23] the Applicant was asked:
“If you are NOT an Australian citizen:
…
Do you have any criminal conviction/s?”
[Emphasis in original]
In each of the two incoming passenger cards, the Applicant clearly ticked “No”.
[22] Exhibit 2, s501 G Documents, G30, page 174.
[23] Ibid, page 176.
Second, in an incoming passenger card dated 9 January 2005,[24] the Applicant was asked the identical question. On this card, the Applicant has marked the “No” response with an “X”. I did not recall any evidence that the Applicant misconstrued the methodology for answering the question such that he thought he had to delete the response which did not apply to him. Nowhere on this card (or the other two cards) do the words “delete the answer which does not apply to you” (or equivalent) appear. As well, the Applicant clearly ticked the “No” answer in the other two cards appearing in the evidence. I thus conclude that the Applicant deliberately answered the relevant question in this third card with “No”, just as he did with the other two cards.
[24] Ibid, page 175.
In my view, the Applicant’s conduct in providing false and misleading answers about his criminal offending in each of the three incoming passenger cards attracts the application of this sub-paragraph (g) in favour of a finding that his conduct is of a very serious nature.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c) (d), (e), (f) and (g) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of a “very serious” characterisation.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(2)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(2)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Any assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, can, to my mind, be properly informed by the nature of his offending apparent in his criminal history to date.

I am mindful of the provision in the Direction stipulating that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
In terms of the nature of the harm that could result from any repeat of the Applicant’s unlawful activity, the Respondent has helpfully identified two components of the material which shed light on this. First, in its “Final Report”, the National Ice Taskforce said in 2015 that:
“Unlike cannabis and heroin, ice is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.”[25]
[My underlining]
[25] Exhibit 1, Respondent’s SFIC, Attachment “F”, Final Report of the National Ice Taskforce, page 65-69.
Second, the learned sentencing judge who dealt with the Applicant in March 2018 noted:
“I’m told…that you are ashamed, as you should be, with involving your son in this pernicious traffic. You should know, as a man of 48, and now from your own personal experience, about the particularly pernicious effects of methylamphetamine, not only on those who use it but on those other members of the community who unfortunately become affected by those who use it because of the serious violence which users of methylamphetamine often seem to be involved in, which I see elsewhere here.”[26]
[My underlining]
[26] Exhibit 2, s501 G Documents, G15, page 118, lines 25-31.
Even a cursory view of his criminal history confirms the Applicant to be a serious repeat offender. He is currently aged 49 years. He has a 30 year history of offending. His history of offending therefore spans virtually the entirety of his adult life in this country prior to his incarceration in December 2016. I have earlier outlined the nature of his offending. Were he to re-offend in any aspect of his offending history thus far, but particularly in the realm of his very serious drug offending, it is not a stretch of reality to suggest that members of the Australian community could be realistically harmed as a result of the Applicant’s unresolved disposition towards crimes, most likely resulting from his unresolved issues with illicit substances. By “realistically harmed”, I mean – at an individual/victim-level – anything ranging from physical to psychological harm, including quite conceivably, catastrophic harm. I also mean – at a broader level – a significant impact on the community’s resources in dealing with this scourge, as well as the dreadful impact on families and loved ones dealing with an addicted victim.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In his Personal Circumstances Form, the Applicant said the following about his risk of reoffending:
Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?
I was convicted of possession and trafficking of methamphetamine [sic]. I started using methamphetemine [sic] at some time after October 2014 when my relationship with [my wife] ended. When [my wife] and I separated I took six months sick leave/long service leave because of the stress and sadness our separation caused me. I don’t think my stress or emotional state are an excuse for the crimes I committed, but I think it provides some explanation. After the six months I resigned from my job and began selling methamhetemine [sic] to fund my addiction and also provide money for [the youngest of my three sons] …
…
“What do you think is the likelihood that you may re-offend now? Please give reasons for your answer.
I think my likelihood of reoffending is very low. Before I began using and became addicted to methamphetamine [sic] I was a hardworking family man. I know that I have an addiction and have done multiple substance abuse courses while I’ve been inside as well as a course in resilience. When I am released from custody I will be seeking counselling and attending AAT [sic] meetings, as well as the courses that will be made available through parole. I will also go and see the Durg [sic] Information Centre in Penrith, NSW so that I can engage with community-based welfare and counselling services. If I can continue with my rehabilitation and stay clean, there is no reaosn [sic] why I would re-offend in the future.”[27]
[Emphasis in original]
[27] Exhibit 2, s501 Documents, G23, page 154.
I accept the Respondent’s contention that the Applicant presents an unacceptable risk of re-offending. At the heart of this risk is the Applicant’s unresolved issues with illicit substances.
The principle difficulty with arriving at any other finding about the Applicant’s risk of recidivism other than it being “unacceptable” arises from the absence of any genuinely probative evidence of the Applicant undergoing and completing any demonstrable form of rehabilitation to address the issue. While I accept the Applicant has completed a number of courses during his time in criminal custody, it is clear – even from the context of the Applicant’s words in his Personal Circumstances From – that any such rehabilitation remains a work in progress. Further, the Applicant cannot point to one single medical practitioner/expert or clinic that has “taken ownership” of the Applicant’s addiction issues and understood how they very adversely affect his behaviour. Thus, while the quite incomplete and insufficient nature of the Applicant’s rehabilitation remains as it is, there is a greater than remote risk of him re-offending.
While the Applicant has undertaken some measure of rehabilitative treatment during his approximate 30 month period in criminal custody and/or immigration detention from December 2016 onwards, that asserted rehabilitation has only been tested in the relatively closed circumstances of criminal custody and immigration detention. It is yet to be tested in the broader Australian community.
The unresolved nature of the Applicant’s rehabilitation was something not lost on the learned sentencing judge who dealt with the Applicant in March 2018:
“I was told by your counsel that when you were young you had a problem with drugs, but when you married, put that behind you and lived in the community appropriately until your marriage broke up in 2014, after which you descended into depression, fuelled by a psychiatric problem of which I have received evidence, which led you to suffer chronic depression, to have suicidal tendencies and difficult personal circumstances arising from the breakup of your marriage. You had also ceased work arising out of that, and I was told…that that led to you using drugs, becoming addicted rapidly to ice after you had been introduced to it by a so-called friend who must have advised you that it might assist you. You were by then in your late forties. You’re now 48, and you should have known better.
That addiction was said to have led to your incurring drug debts. You took up trafficking to assist in paying them. The prosecution regards that with some scepticism, and one might think the scepticism might be justified having regard to the history and having regard to the amount of drugs and cash that you had on you at the time you were intercepted.”[28]
[28] Ibid, G15, page 116, lines 25-40, per Douglas J.
Any assessment of an offender’s risk of re-offending is a somewhat arbitrary exercise performed without the benefit of a defined formula or scale for fixing a representative number from a continuum ranging, for example, from a low to a high risk of re-offending. Viewed in its totality, there is a dearth of independent and expert medical (or other) opinion to convince the Tribunal that the Applicant’s assertions of wanting to re-configure his life, such that he no longer represents any risk to the Australian community. The state of the medical and other rehabilitative evidence is such that I have minimal confidence in this Applicant not further offending were he to be returned to the Australian community.
I am mindful of the comments made by a previous President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:
“The likelihood of recidivism is a strong factor in favour of deportation when the Tribunal is not satisfied that the criminal is unlikely to offend again…And even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”[29]
[References omitted]
[29] Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81, 133.
Conclusion: Primary Consideration A
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and find that: (1) the nature of the Applicant’s offending conduct to date is very serious; and
(2) there is strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community, especially were he to resume his abuse of illicit drugs, particularly ice.
Were he to re-offend, the harm that would be occasioned to others would be both physically and psychologically substantial, very serious and potentially catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs very heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The material discloses three children. Child 1 is in his mid-20s. Child 2 is over 20 years of age. Child 3 is the one minor child potentially affected by the cancellation decision.

Child 3 is currently 15 years of age. The child resides in Australia and is primarily cared for by his mother, who is the Applicant’s ex-wife.
There was a concession from the Respondent that this Primary Consideration B carries “…limited, if any, weight in favour of the applicant...”[30] This contention of the Respondent is arrived at after an application of the factors appearing at paragraph 13.2(4) of the Direction.
[30] Exhibit 1, Respondent’s SFIC, page 11, paragraph [41].
In his Personal Circumstances Form, the Applicant says these things:
“Please describe your relationship with each child including when it began, how often you contact/see the child/ren and the role you play in their lives.
Until I was imprisoned I was actively involved in [Child 3’s] life since his birth. From the time [Child 3] was born until [my ex-wife] and I separated in October 2014 I would see [Child 3] every day. After [my ex-wife] and I separated and until I was imprisoned in December 2016 I was looking after [Child 3] about 50 per cent of the year. I love my son and he loves me. Before I was imprisoned [Child 3] and I spent a lot of time together. We would go to the movies and go shopping together. He likes watching movies and playing playstation. He also likes going to Indian cultural events and visiting relatives. I would take him to Indian community festivals. Up until I ceased my employment and was imprisoned after [my ex-wife] and I separated I would financially support [Child 3].
Please describe the impact the cancellation of your visa would have, or has had, on the child/ren listed.
[Child 3] would be shattered if I was not allowed to remain in Australia and were unable to return. He’s waiting for me to come home and has been asking me when I’ll be able to come home. Because my visa has been cancelled and I haven’t been able to give him an answer and he’s not taking it very well. He’s had some problems at school and has been depressed.
If I am not allowed to remain in Australia I do not expect and would not let [Child 3] move to Fiji to live with me. This is because he is Australian, his mother and brothers live in Australia and he has far better avenues for education and careers in Australia than he would have in Fiji. I think he would suffer more if he moved to Fiji than if he stayed in Australia, but I think he will suffer significantly if he and I are permanently separated because I was a permanent part of his life from his birth until I was imprisoned.”[31]
[Emphasis in original]
[31] Exhibit 2, s501 G Documents, G23, page 152.
Child 3 has provided a statement that appears in the material. He notes these things:
“…I am the youngest child of Dineshwar Dayal, if he was sent away I would become very upset as I would be living without a father figure in life and I will miss him very much and it will hurt me a lot and I will be emotionally affected which will affect my schooling and my normal day to day life. My father and I had a very close relationship when I was younger…We would often go on drives to places around Brisbane and adventure together, he would take me out to his work and I would go with him when he drove the buses and I spent time with him…Since dad has been gone I have been very sad and down and depressed it has been very tough without him. I miss him every day and that also affecting my education and going through life, I will be heavily affected by this. If he does get sent away I will lose my father and I will grow up without one and his guidance and hand [sic], I will learn how to shave without him and how to learn to drive a car and he will not be there for my graduation and my 18^th…”[32]
[32] Ibid, G28 page 172.
There is a ready acknowledgement from the Respondent that this statement from Child 3, albeit unsigned, is supportive of the Applicant.
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors relevantly comprise for present purposes:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

Subparagraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the children. I do note and accept that the Applicant did have a close and loving relationship with Child 3 prior to his incarceration in December 2016. However, his role in Child 3’s life has been significantly limited as a result of his approximately 30 month term in criminal custody and/or immigration detention from December 2016 until now.
It is not unreasonable to find that the Applicant has been either totally or substantially absent from the life of Child 3 during the time of his abovementioned 30 month physical absence.
Thus, the nature and duration of the relationship between the 15 year old Child 3 and the Applicant has been very limited over the last two and a half years. That has been a period of long absence with little or no meaningful contact. Because of the apparently close and loving relationship between the Applicant and Child 3 until December 2016, it is reasonable to find that there has been a convincing “track record” of a durable and close father/son relationship between them. On this basis, it is reasonable to infer that, were the Applicant to be reintroduced into the life of Child 3, that durable and close father/son relationship would very likely be resumed. I am thus of the view that a moderate level of weight is attributable to this sub-paragraph (a) in support of a finding that the Applicant’s migration status to remain in this country should be restored to him.
Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision-maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child turns 18. Any application of this sub-paragraph (b) is informed by the extent to which the Applicant has played any such role to date.
As mentioned, while the Applicant has been largely absent from Child 3’s life since December 2016, there is sufficient history of a loving and durable father/son relationship to warrant a finding that the Applicant will play a parental role in Child 3’s life in the future. For present purposes, I do not think this role is limited by any shortcomings or deficiencies in the love and affection between the two of them, but more as a result of the reality that Child 3 will turn 18 in early 2022.
Thus, for the purposes of this sub-paragraph (b), the “parental role” the Applicant can play in Child 3’s life is limited by virtue of that child’s relatively advanced age. Be that as it may, a moderate level of weight is attributable to this sub-paragraph (b) in favour of a finding that it would be in the best interests of Child 3 that the Applicant’s visa were reinstated to him. Obviously, that weight would have been greater if Child 3 had, for example, been seven years of age instead of 15.
Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on his minor child in Australia. As quoted earlier, the Applicant, in his Personal Circumstances Form, speaks of the adverse impacts that have been experienced by Child 3 as a result of the Applicant’s past offending and the extent to which Child 3 may be affected were the Applicant to reoffend. There is nothing in the material – be it in the form of a lay or expert witness – identifying any negative impact the Applicant’s prior conduct has had or the likely impact any future conduct may have, on Child 3. It is clear from the unsigned statement of Child 3 that he is aware of his father’s past offending because he speaks of a period of time “Since dad has been gone…”. One wonders if Child 3 knows of the dreadful impact of the father’s offending on his sibling, who became the father’s co-accused and co-offender. Further, if Child 3 is aware of that, one also wonders about the impact such knowledge has had or may have on Child 3. However, to form any conclusions from such musings is to enter the realm of speculation.
Having regard to all of the evidence, the only reasonable finding is that this sub-paragraph (c) merits a slight allocation of weight in favour of a finding that restoration of the Applicant’s migration status to remain in this country is in the best interests of his minor son.
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the 15 year old child from the Applicant would have on that child, taking into account the Applicant’s ability to maintain contact in other ways. This factor can be assessed on two grounds. First, while the Applicant and Child 3 may speak of adverse impact(s) on Child 3 as a result of any permanent separation between them, there is no independent expert evidence about the effect that any such separation would have on Child 3, given the existing separation to date.
Second, we live in an age of electronic communication and there can be no doubt that the Applicant will be able to have at least some measure of contact with his 15 year old Australian son by SMS and/or social media platforms from Fiji or elsewhere. The logical extension to this involves the introduction and maintenance of visual and real-time contact with the child via Skype and other digital platforms.
Noting the absence of any independent expert evidence, but, at the same time, having regard to the combined evidence of both the Applicant and Child 3, a slight level of weight can be attributed to this sub-paragraph (d) in assessing whether restoration of the Applicant’s migration status is in the best interests of his minor child in Australia.
Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the child. It is clear that Child 3’s mother has fulfilled the sole parental role since the Applicant’s incarceration. Prior to the Applicant’s incarceration, Child 3’s mother became his primary carer. As noted by the Applicant, “[My ex-wife] moved out with [Child 3] a few days after she told me of her intention to leave. [i.e. in October, 2014] My older boys [Children 1 and 2] chose to stay with me.”[33]
[33] Ibid, G9. Page 76, Statutory Declaration of the Applicant, sworn on 13 August 2018, paragraph [34].
In his Personal Circumstances Form, in response to the question “Are there any court orders that relate to your children?”, the Applicant marked the “No” box but added, “Before I was imprisoned [my ex-wife] and I had an informal agreement that we share [Child 3’s] custody 50/50.”[34]
[34] Ibid, G23, page 152.
It seems that while he has been incarcerated, all three of the Applicant’s children have moved to Sydney. He notes:
“In about April 2018 [my ex-wife] and [Child 3] moved back to Sydney so that she could live closer to her family. At about the same time my older two sons [Child 1 and Child 2] moved back to Sydney to live with my mother, who is getting on in years.”[35]
[35] Ibid, G9. Page 77, Statutory Declaration of the Applicant, sworn on 13 August 2018, paragraph [51].
Having regard to the age of Child 3 and his relocation to Sydney with his mother and two siblings, it is difficult to allocate any meaningful measure of weight to this sub-paragraph (e). At best, only a slight measure of weight can be allocated to this sub-paragraph (e) in assessing whether restoration of the Applicant’s migration status is in the best interests of his minor child in Australia.
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the child about his separation from the Applicant, having regard to his age and maturity. As already alluded to, there is no independent or expert evidence before the Tribunal that the child is exhibiting behaviours indicative of adverse views he may have regarding how the physical removal of his father from his life will negatively impact upon him. As against that, there is the self-reported evidence of Child 3 and the similarly worded evidence of the Applicant.
In the absence of any independent and/or expert evidence to verify the asserted views of Child 3 and the Applicant, it is difficult to allocate any appreciable measure of weight to this sub-paragraph (f) in such circumstances where, in particular, there is no expert evidence to confirm that the prolonged, physical absence of Child 3’s father from his life thus far, or in future, will have any adverse impact on him.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the child in any way, including physical, sexual, and/or mental abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. For reasons already stated in relation to sub-paragraph (c), I am of the view that this sub-paragraph (h) – in the absence of any independent and expert evidence about any physical or emotional trauma suffered by the child as a result of the Applicant’s offending conduct (as opposed to the Applicant’s prolonged physical absence from his life) – is of no weight and is not determinative of any finding about this Primary Consideration B.
Conclusion: Primary Consideration B
Having regard to:
(a)the combined evidentiary weight of the Applicant and Child 3 indicating a mutual intention to resume their father/son relationship;
(b)the physical absence of the Applicant from Child 3’s life for the last 30 months;
(c)the relocation of Child 3 and his mother (and other two siblings) to Sydney in April 2018;
(d)the reality that Child 3’s mother has fulfilled a sole parental role for Child 3 at least since December 2016;
(e)the Respondent’s concessions about: (1) the limited, if any, weight of this Primary Consideration B in favour of the Applicant; and (2) the content of Child 3’s unsigned statement; and
(f)the slight to moderate level of weight I have variously attributed to factors (a), (b), (c), (d), and (e) of paragraph 13.2(4) of the Direction.
I am of the view that the best interests of the Applicant’s 15 year old child in Australia do weigh slightly in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that, any weight I attribute to this Primary Consideration B is of a moderate level and does not, in any way, outweigh the very heavy weight I have attributed to Primary Consideration A.
Primary Consideration C – The Expectations of the Australian Community
I turn now to the final Primary Consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1)[36] of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect and any overarching principles and guidance provided by the Direction.[37] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that they should not hold a visa.
[36] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[37] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
For the purposes of considering the instant application, the essential question, to my mind, with respect to Primary Consideration C is whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending should not retain the privilege of holding a visa to remain in Australia,[38] notwithstanding the contributions of the Applicant (if any) to the Australian community, the amount of time he has lived in Australia,[39] and the impact of his removal upon his immediate family in Australia.[40] Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, the question of whether the Applicant should

(or should not) retain the privilege of remaining in Australia must be broken down into a series of components so that it can be properly understood and assessed.
[38] Ibid, paragraphs 13.3(1) and 6.3(1)-(6).
[39] Ibid, paragraph 6.3(5).
[40] Ibid, paragraph 6.3(7).
The essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·He arrived in Australia in June 1987 aged 17 years, although he has departed Australia on several occasions since that time;
·His National Criminal Check discloses an offending history running from February 1988 until March 2018 – a period of approximately 30 years;
·His offending across this 30 year period has resulted in the imposition of the following custodial terms:
o22 June 1999:
·         A four month custodial term for: “Drive while disqualified from holding license”;
o7 March 2018:
·         Trafficking in dangerous drugs - offence committed between 5 September 2016 and 20 October 2016;
·         On this charge, a conviction was recorded and the Applicant was sentenced to a custodial term of five years.
o7 March 2018:
·         Possession of dangerous drug (schedule 1 or 2) – offence committed 9/12/2016;
·         On this charge, a conviction was recorded and the Applicant was sentenced to a custodial term of 12 months;
o7 March 2018:
·         Possession of dangerous drug (schedule 1 or 2) – offence committed on 9/12/2016;
·         Produce schedule 2 drug – offence committed on 9/12/2016;
·         On both charges, a conviction was recorded and the Applicant was sentenced to a custodial term of six months;
o7 March 2018:
· Possessing anything used in the commission of a crime defined in part 2 of the Drugs Misuse Act 1986 (Qld) – offence committed on 19/10/2016;
· Further charge of possessing anything used in the commission of a crime defined in part 2 of the Drugs Misuse Act 1986 (Qld) – committed on 9/12/2016;
·         Possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act 1986 (Qld) – offence committed on 9/12/2016;
·         For the above summary offences, the Applicant was convicted but not further punished, having regard to the three custodial terms imposed by the Brisbane Supreme Court for the Applicant’s indictable offences on 7 March 2018;
o7 March 2018:
·         Possession of dangerous drugs (schedule 1) – of or exceeding schedule 3 but less than schedule 4 – offence committed on 19 October 2016;
·         Possession of dangerous drugs (schedule 1 or 2) (two charges) – offences committed on 19 October 2016;
·         Possession of dangerous drugs (schedule 2 drug quantity of or exceeding schedule 3) – offence committed on 19 October 2016;
· Possession of anything used in the commission of a crime defined in part 2 of the Drugs Misuse Act 1986 (Qld) – offence committed on 19 October 2016;
· Receiving or possessing property obtained from trafficking or supplying defined in s 7(1)(A) Drugs Misuse Act 1986 (Qld) – offence committed on 19 October 2016;
·         On all of the above charges, a conviction was recorded but not further punished, having regard to the three custodial terms imposed by the Brisbane Supreme Court for the Applicant’s indictable offences on 7 March 2018;
[My emphasis]
·Sentencing regimes imposed by the courts have sought to address the commission of some 37 individual offences on 16 sentencing occasions;
·The Applicant is now aged 49 years. His criminal history runs for 30 years. The virtual totality of his adult life in this country has undeniably involved a consistent and increasingly serious level of offending, culminating in the imposition of quite significant custodial terms in March 2018;
·The totality of custodial terms imposed in March 2018 exceeds 6 years and 6 months[41];
·
I have found that his offending in this country can only be described as

“very serious” and I have also found that there is a strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community; and
·There is no definitive, independent or expert evidence before the Tribunal of: (1) any diagnosis of psychological or other factors predisposing the Applicant to offend; (2) that those factors have been identified and are now the subject of remedial therapy and management; (3) that the Applicant has demonstrated any convincing level of insight into his offending so that; (4) this Tribunal can confidently find that there is no real risk of him re-offending.
[41] On 7 March 2018 at the Brisbane Supreme Court,, the Applicant received total custodial terms of 6 years and 6 months. On 22 June 1999, at the Penrith Local Court, the Applicant was sentenced to “Periodic Detention: 4 Months Commencing 02/07/1999”.
I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[42]
[42] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[43] The learned Deputy President thought this paragraph leads a decision-maker to:
102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects noncitizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.
[My underlining]
[43] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[44]
In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.
[My underlining]
[44] [2017] FCA 1466 at [76]-[77].

The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.
[My underlining]
In Afu v Minister for Home Affairs,[45] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[My underlining]
[45] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant, with his personal circumstances and history in this country, has been adequately dealt with by the imposition of a very significant custodial term for his very serious offending to date, such that he should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)the very serious nature of his offending to date;
(ii)his unresolved substance abuse issues and how that adversely impacts on:
(1) the Applicant’s lack of respect for lawful authority;
(2) a convincing likelihood that he will engage in further, very serious conduct if returned to the Australian community; and
(3) my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to reoffend;
(iii)the comments of the learned Mortimer and Bromwich JJ and Deputy President Forgie about how a decision-maker applies paragraph 13.3(1) of the Direction in the current context.
I therefore find that the Australian community would consider that this Applicant, who has committed very serious offences, has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not hold a visa to remain here.
At the hearing and in his written material, the Applicant spoke of wanting to re-configure his life, to engage with further rehabilitation and to re-engage with both his family and the Australian community so that his primary focus becomes one of providing for his family unit and himself. He spoke of wanting to re-define his life and to otherwise participate as a responsible and productive member of the Australian community. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[46]
[46] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65], per Senior Member Toohey.
I have had regard to the respective character references and letters of support from the Applicant’s three children and a personal friend who has known him since 1998. Child 1 (the eldest child), speaks of “Throughout my entire life, my father has not only been a major support for me but also to the family and even to friend alike.”[47] Child 2, who was drawn into the Applicant’s offending and became a co-accused of the Applicant, nevertheless says these things about the Applicant:
“He is the only person in my family to understand support and love me for who I am. He is the key reason for me achieving mental stability in that time of my life. To me, my father is the crafter and I am the clay, everything I am and who I have become is thanks to his love and guidance. Despite this I am still a work in progress and heavily rely on his wisdom, advice and guidance to help become a better man while navigating life. The impact my father had has [sic] on me is one of the very few things I am grateful for in my life.”[48]
[47] Exhibit 2, s501 G Documents G27, Letter of Support (unsigned) of Child 1), page 171.
[48] Ibid, G26, page 170.
I have misgivings about the weight attributable to this statement of Child 2 in circumstances where, as a 19 year old, Child 2 found himself before the Brisbane Supreme Court in March 2018 being sentenced for very serious drug offences as a direct result of having been drawn (as a 17 year old) into the orbit of his father’s very serious drug offending.
It is clear that the Applicant’s life thus far has not been an easy one. The personal friend who provided a statement records that “I still recall when Dinesh’s father and eldest brother passed away he took the responsibility to look after his mother and the rest of his family. He made sure his mother was okay after losing her loved ones…”[49]
[49] Ibid, G29, page 173.
The Applicant does have a work history in Australia. He holds a Certificate IV in Training and Assessment. In addition, the material discloses that he has the following work history:
1987-1989: Trainee/Assistant Manager, Payless Superbarn, Penrith NSW;
1989-2001: Storeman, Fullview Plastics/Dairy Farmers, Blacktown NSW;
2001-2004: Warehouse Manager, Japan Food Corp, Underwood QLD;
2004-2010: Route Driver, Brisbane City Council, Brisbane QLD;
2010-2015: Driver Trainer, Brisbane City Council, Brisbane QLD.”[50]
[50] Ibid, G23, page 155.
I think a reasonably minded member of the Australian community would bear in mind that it can be fairly argued that any likelihood of the Applicant reoffending is yet to be tested in the community because: (1) he has been removed from that community on a continuous basis since December 2016; and (2) none of the psychological symptomatology predisposing him to offend has been addressed or dealt with by independent expertise.
Conclusion: Primary Consideration C
Having regard to Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation. I consider that the expectations of the Australian community are such that, given the nature of the Applicant’s offending, including the very serious drug offending (and his other offending across a 30 year criminal history), he should not hold a visa to remain here.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 14(1) of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I address each in turn.
(a) International non-refoulement obligations
There are no non-refoulement obligations that are relevant to the Applicant. This Other Consideration (a) is not relevant in this case.
(b) Strength, nature and duration of ties
There are respective concessions by the Respondent that:
·This Other Consideration (b) weighs in favour of the Applicant;[51]
·That the Applicant’s family in Australia comprises, in addition to his three sons, the following: his mother, three siblings, 11 nieces/nephews and two cousins.[52]
[51] Exhibit 1, Respondent’s SFIC, page 14, paragraph [54].
[52] Ibid, paragraph [53].
The Applicant contends that:
“All of my immediate family and most of my extended family lives in Australia. My brothers and sisters were living in Australia before my parents and I left Fiji when I was 17 years old. None of my family will return to live in Fiji with me because they all have their own families in Australia and have lived here for over 30 years. My family would be greatly distressed if I were permanently excluded from Australia, including my adult sons who I have loved since they were born and my mother who is getting towards the end of her life and who might not be able to see me again.”[53]
[53] Exhibit 2, s501 G Documents, G23, page 153.
It is clear that the strength, nature and duration of the Applicant’s ties to Australia are significant. While there is little or no independent evidence that the strength of the Applicant’s ties to this country goes much beyond his three sons, the Applicant’s circumstances are such as to warrant a finding that, consistent with paragraph 14.2(1)(b) of the Direction, those ties, and thus this Other Consideration (b), favours the Applicant.
That observation must be tempered by the factors appearing at paragraph 14.2(1)(a) of the Direction. The Applicant first arrived here as a 17 year old in June 1987. He began offending barely seven months later in February 1988. He continued offending for virtually the next 30 years, which effectively spans the entirety of his adult life. It culminates, as recently as March 2018, in him being sentenced for very serious drug offending that resulted in the imposition of respective custodial terms amounting to six years and six months.
Thus, it can be said that he commenced offending soon after arriving here, and he has consistently offended (at an increasing level of seriousness) for virtually the entirety of his adult life in this country. Accordingly, any weight attributable to this Other Consideration (b) must be tempered by a finding (pursuant to paragraph 14.2(1)(a)(i) of the Direction) that he began offending soon after arriving in Australia. It is not possible to give more weight to this Other Consideration (b) pursuant to paragraph 14.2(1)(a)(ii) because it can be reasonably found that the time the Applicant can be said to have spent contributing positively to the Australian community is outweighed by his very serious criminal conduct during the corresponding period.
While this Other Consideration (b) may weigh in favour of revocation, it is of limited weight only and is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
I cannot recall any evidence that this consideration is of relevance in determining this application.
(d) Impact on victims
The Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victim(s). Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on that victim(s). Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include: (a) the non-citizen’s age and health; (b) whether there are any substantial language or cultural barriers; and (c) any social, medical and/or economic support available to that non-citizen in that country.
With specific reference to the three factors appearing in paragraph 14.5(1) of the Direction, I note the Applicant is a man of 49 years of age in seemingly good health.[54] He has not declared that he has any significant health concerns beyond diabetes, which he seems to be managing with the assistance of prescribed medication (Diabex). There are no substantial language or cultural barriers to his return and re-establishment in Fiji.[55] As a citizen of that country, he will have access to social, medical and/or economic support available to him in Fiji. While I accept that medical care and governmental social support in Fiji[56] may not be at the same level as that available to the Applicant in Australia, he will have access to those things in the context of what is generally available to other citizens of Fiji.
[54] Section 14.5(1)(a) of the Direction.
[55] Section 14.5(1)(b) of the Direction.
[56] Section 14.5(1)(c) of the Direction.
The Applicant’s Movement Records indicate that he has returned to Fiji on five separate occasions, in 1994, 2004, 2005, 2007 and 2009.[57] I accept the Respondent’s contention that while the Applicant may face some difficulty in re-establishing himself in Fiji, this factor would present as a short-term hardship and would not preclude his successful re-settlement there.[58]
[57] Exhibit 2, s501 G Documents, G31, page 177.
[58] Exhibit 1, Respondent’s SFIC, page 15, paragraph [63].
As mentioned earlier, the Applicant has a strong work history in this country having secured remunerative employment on a continuous basis from 1987 until 2015.[59] The material also discloses a “Verification of Employment” certifying that while in criminal custody the Applicant “...commenced employment at Arthur Gorrie Correctional Centre from May 2017 as a Logistics Worker and as of the date of this Verification, is still currently employed as a Logistics Worker in this capacity…Date: 7^th November 2017.”[60] There is little evidence in the material to cavil with the contention that the Applicant would not be able to find similar work in either logistics or any of his earlier Australian employment roles in Fiji.
[59] See paragraph 113 of this decision.
[60] Exhibit 2, s501 G Documents, G25, page 169.
I am thus of the view that this Other Consideration (e) is of neutral weight to the determination of this application.
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which weigh heavily in favour of non- revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant.
·Strength nature and duration of ties: is of limited weight for the Applicant.
·Impact on Australian business interests: not relevant.
·Impact on victims: not relevant.
·Extent of impediments if removed: is of neutral weight for the Applicant.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by

s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other and/or Primary Consideration B, outweigh the very significant combined weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 135 (one hundred and thirty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

............................[SGD]............................................
Associate
Dated: 11 June 2019

Date of hearing: 27 May 2019

Applicant:

Advocate for the Respondent:

Appeared in person and represented himself

Mr Matthew Hawker (Partner)

Solicitors for the Respondent: Sparke Helmore

[2019] AATA 1235

11 June 2019

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