DQNQ and Minister for Immigration, Citizenship and Multicultural Affairs
[2024] ARTA 3
•6 December 2024
DQNQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) ARTA 3 (6 December 2024)
Applicant/s: DQNQ
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2024/8653
Tribunal:Deputy President Britten-Jones
Place:Sydney
Date:6 December 2024
Decision: The Tribunal sets aside the decision under review and substitutes a decision that the decision of 24 January 2019 cancelling the Applicant’s visa is revoked.
.........................[SGD]...............................................
Deputy President Britten-Jones
Catchwords
MIGRATION – Non-revocation under s 501CA(4) of the Migration Act 1958 of the mandatory cancellation of Applicant’s Class BB Subclass 155 Five Year Resident Return Visa– where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – Substantial Criminal Record – Protection of the Australian Community – Strength Nature and Duration of Ties to Australia – Best Interests of Applicant’s Minor Children – Decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Secondary Materials
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Class BB Subclass 155 Five year Resident Return visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA
On 24 January 2019 the Applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.[2]
[2] Exhibit 8, 338.
The Applicant sought revocation of the cancellation decision on 19 February 2019 and made representations in support of revocation.[3]
[3] Exhibit 8, 326.
On 22 October 2024, a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision).[4] The applicant applied to the Tribunal for review of the non-revocation decision on 29 October 2024.[5] The Tribunal heard the matter on 2 and 3 December 2024.
[4] Exhibit 8, 20.
[5] Exhibit 8, 7.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
ISSUES BEFORE THE TRIBUNAL
The Applicant concedes appropriately that he does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). It follows that the Applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[6] Deciding whether or not to be satisfied that ‘another reason’ exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[7]
[6] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [22] and [36].
[7] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41, [14].
BACKGROUND
The Applicant is a 34 year old Muslim man who has lived in Australia since he was nine years old. He was born in Jordan on 3 July 1990 but he is not a Jordanian citizen. He came to Australia as a refugee with his mother and half-brother in September 1999. They arrived on a small wooden boat and were processed on Christmas Island. They moved to Villawood detention centre in 2000. He was granted a protection visa and became an Australian permanent resident in 2005. His mother and half-brother became Australian citizens in about 2007.
Prior to coming to Australia the Applicant had a very traumatic childhood which included losing his father and brother in a house fire in 1996 and being kidnapped in 1998.
For much of his childhood in Australia, the Applicant was the primary carer for his mother who has many health issues. Whilst going to school he also held numerous part-time jobs including as a kitchen hand at Hungry Jacks and a trolley boy at Woolworths. He left school in the last term of year 12 and felt he did not really have any direction in life apart from looking after his mother and younger brother. He had a few jobs including working in a restaurant, carpet laying and for a building company but never really had the opportunity to seek a real employment role because of his family commitments and the nature of the community he lived in. He met his wife when they were both in high school.
In his later teenage years he began associating with the wrong type of people some of whom were involved in gangs. There was a particular Assyrian gang called DLASTHR who the Applicant said did not like Muslims. The Applicant made friends with people involved in criminal activities but he never joined a gang. Some of his friends were drug dealers and he started using cannabis in about 2007 which was when his criminal conduct began. In about 2009 his mother had two strokes and the Applicant took over her business which was a gift store in Parramatta. He ran the business for about two years but he struggled under the weight of so much responsibility and began selling cannabis in about 2011 to make some money to support his family. During this period his criminal behaviour became worse and he became an ongoing target of the DLASTHR gang. He was the subject of numerous drive-by shootings, first in July 2012, then June 2013 and December 2013. He was shot at again in 2015 and March 2016. There was another drive-by shooting in July 2016. The Applicant believes that the DLASTHR gang was responsible for these shootings.
In March 2016 he was arrested in relation to drug supply charges and remanded in custody until 15 August 2016. The Applicant says that he has not been involved in any criminal conduct since his arrest in March 2016 at which time he stopped using cannabis.
The Applicant’s daughter was born on 20 July 2017. His priorities changed and he decided at that time that he did not want a life of crime and wanted to be a present father for his daughter. His wife became pregnant with their second child in around September 2017.
In May 2018 the Applicant was remanded in custody where he remained after he was sentenced on 1 June 2018 for charges relating to offences in 2011 and 2012. He received an aggregate sentence of seven years and nine months imprisonment with a non-parole period of five years and three months. In August 2020 he was sentenced to four years three months imprisonment for the drug supply offences in 2016.
Whilst in prison the Applicant was the victim of numerous assaults which likely arose from his decision to give evidence against some of the members of the DLASTHR gang. From that time he was seen as a police informant.
On 31 August 2024, the Applicant was released on parole and transferred to immigration detention.
On 22 October 2024, the decision was made to not revoke the cancellation of his visa. In accordance with the High Court of Australia’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005, the Applicant was released from immigration detention on that day and was granted a bridging visa. He has been living with his wife and two children since being released and he has been helping his mother and younger brother.
The Applicant gave oral evidence and provided written statements dated 16 August 2024[8] and 20 November 2024.[9] There was written and oral evidence from his wife, mother and half-brother. The Applicant relied upon reports dated 15 June and 25 September 2024 and oral evidence from a clinical psychologist, Sam Borenstein.
[8] Exhibit 8, 458.
[9] Exhibit 3.
Direction 110
The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.
For the purposes of deciding whether to refuse a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the Primary and Other Considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by the principles in paragraph 5.2 above, I must take into account the primary and other considerations in the Direction.
The primary considerations are:[10]
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
[10] Direction 110 at 8.
The other considerations are:[11]
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interest.
[11] Ibid 9(1).
The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[12]
CONSIDERATION
[12] Ibid 7(2)
Protection of the Australian community – 8.1 of Direction 110
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[13] As required by paragraph 8.1(2) of the Direction, I give consideration below 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.
[13] Ibid 8.1(1).
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 110
The Applicant’s criminal record is set out in the report from the Australian Criminal Intelligence Commission.[14]
[14] Exhibit 8, 247.
The Applicant’s first offending as an adult[15] related to the charges for damaging property and recklessly wounding which took place on 13 August 2008 when the Applicant was 18 years old. During this incident the Applicant wounded another with nunchucks and then caused damage to the windscreen of a vehicle. He was sentenced on 12 February 2010 to 18 months periodic detention.
[15] The Respondent submitted that the Tribunal should not take into account the juvenile offending that was dealt with in the Parramatta Childrens Court
The Applicant committed traffic offences including driving whilst his licence was suspended and while he was disqualified from holding a licence for which he was fined in 2011 and 2014.
The Applicant’s most serious offending was dealt with in the Downing Centre District Court on 1 June 2018 when he was sentenced to a term of imprisonment of 7 years and 9 months. There were four charges. The first was for supplying methylamphetamine, being a prohibited drug on 23 December 2011. The sentencing judge described this as a blatant drug transaction which involved significant deliberation and planning. The second offence was a carjacking matter in which the Applicant enlisted security people and invoked some subterfuge to seek to recover a debt. The sentencing judge said that the Applicant administered some violence himself to collect the debt and described it as very serious. The third offence involved the Applicant as an accessory after the fact to the discharge of a firearm with intent to do previous bodily harm. The fourth offence was described by the sentencing judge as a very serious charge of specially aggravated kidnapping which took place on 18 January 2012. The Applicant was in the company of three people. Windows were smashed, the victim’s head was covered and he was assaulted and forcibly removed from the vehicle, thrown in the boot of another vehicle, driven around for 15 minutes, repeatedly punched, threatened to be bashed and then let go when it was realised that a mistake as to the victim’s identity had been made. The sentencing judge said that they were all enthusiastic participants in what happened and were equally responsible. These later offences were committed whilst on bail for the first offence.
The next series of offences were committed between 29 February and 15 March 2016 when Applicant supplied approximately 112 g of methylamphetamine over some 36 separate transactions. The Applicant was convicted in August 2020 of dealing with suspected proceeds of crime and supplying prohibited drugs for which he received a term of imprisonment of 4 years and 3 months.
The Applicant’s offending spanned a period of eight years commencing when he was 18 years old. It included violent conduct and the serious supply of harmful drugs. The offending was frequent and I take into account the cumulative effect of repeated offending. The seriousness of the offending is reflected in the two very significant custodial sentences which were imposed on the Applicant.
I conclude as to the nature and seriousness of the Applicant’s conduct that it was very serious. It is a very significant factor in terms of whether I am satisfied that there is ‘another reason’ to set aside the non-revocation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 110
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[16] As required by paragraph 8.1.2(2) of the Direction, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non- citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[16] Direction 110 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[17] Her Honour said that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future. It is my view based on the following reasons that the Applicant’s conduct and the harm that would be caused if it were to be repeated is not so serious that any risk that it may be repeated is unacceptable.[18]
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 110
[17] (2014) 225 FCR 424.
[18] Ibid 8.1.2(1).
If the Applicant were to engage in further similar criminal offending, the nature of the harm would be serious. By committing acts of violence and drug supply, the Applicant has caused significant trauma to his victims and the wider community. If the Applicant continued to engage in similar conduct it would have serious consequences.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 110
The Applicant has expressed remorse for his offending and says that he will not re-offend because he is a changed person after the birth of his two children in 2017 and 2018. The Applicant made similar statements that he would not offend after his criminal activity in 2008[19] and yet he went on to commit very serious offences in 2012 and again in 2016. It is important for the Tribunal to not merely rely on his most recent statement of intent because it has been made in the past and breached.
[19] See exhibit 9, report from W John Taylor, clinical forensic psychologist, dated 7 February 2010.
The Applicant has not engaged in criminal conduct since March 2016. He proved that he could avoid criminal activity in the community for the period from August 2016 until May 2018 together with the period of six weeks after he was released from detention on 22 October 2024. The Applicant’s behaviour in prison was mostly free of incident and he showed some positive characteristics by engaging in prison activities and being made a sweeper which is a leadership position given on merit. He also engaged in numerous rehabilitative programs and met with a psychologist whilst in prison.
Mr Sam Borenstein, a clinical psychologist, prepared detailed reports on 15 June 2024 and 25 September 2024 and provided evidence to the Tribunal. He assessed the Applicant’s risk of reoffending as “extremely low, if not negligible.” He said that the Applicant had used his time in prison well and had matured and consulted a psychologist and pursued available courses. He referred to his willingness to put the past behind him by testifying against others and providing police with information and in doing so putting his life at risk. This was a reference to the Applicant being a police informant with respect to criminal charges against gang members. Mr Borenstein noted that the Applicant accepts the need to undertake further psychiatric and psychological treatment when released from prison to treat his PTSD and to ensure relapse prevention. He noted that the Applicant expressed both insight and understanding of the impact his past offending has had on individual lives and the broader community for which he repeatedly expressed guilt, remorse and contrition, evidenced by his preparedness to cooperate with police at considerable risk to himself and potentially his family. He opined that the Applicant has evolved and now presents as having law abiding values which will continue when released. He said that the risk of the applicant coming to the attention of the police and the courts again will be minimal.
Mr Borenstein was cross-examined and maintained his positive views with respect to the Applicant when giving evidence before the Tribunal. He accepted that the Applicant needs ongoing treatment and said that his recent engagement with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) was a very positive development which could continue.
The Respondent relied on a pre-release report dated 8 May 2024 prepared by a community corrections officer from the New South Wales Department of Justice which included an assessment of reoffending in the range of medium to low. Mr Borenstein considered the pre-release report in his later report of 25 September 2024 and in his oral evidence. He maintained his view that the Applicant should be assessed as a low risk of reoffending.
I was very impressed with the reports written by Mr Borenstein and his oral evidence including under cross examination. He is an independent and authoritative expert and I give his opinion significant weight.[20]
[20] Direction 110 at 7.1
Having seen the Applicant give evidence in the Tribunal, I agree with Mr Borenstein’s assessment and opinion. The Applicant expressed a genuine understanding of why he committed offences in the past and the impact that had on his victims, his family and the wider community. He explained how he has commenced taking steps to address the issues that contributed to his past offending. He understands that he must not associate with persons who were a bad influence on him in the past. He has not smoked marijuana since March 2016. He has been engaging with psychologists to deal with his PTSD and severe depression. The biggest change in his life since he offended is the birth of his two children which is the most significant motivating factor for him to not re-offend. The Applicant repeatedly stated that he wants to be a good role model for his children and he does not want them to grow up without a father like he did. Despite being subjected to repeated threats and physical attacks, the Applicant became a police informant whilst in prison and gave evidence in court to assist in a criminal prosecution. The Applicant is justifiably proud of his behaviour in this regard and it supports his contention that he is a changed man.
The Applicant has the benefit of a loving and supportive wife who has worked hard for the family whilst the applicant has been in prison. The Applicant has been promised a job as soon as he gets his drivers licence for which he is sitting this week. The Applicant has shown in the past that he can obtain employment and I am confident that he will soon be working which will be of great assistance to his wife and his wider family. The Applicant has also displayed positive characteristics in the past by looking after his mother and caring for her. He expects to continue in this role which provides an additional motivation for him to not re-offend. He does not want to let his family down again and I am confident that he will not do so.
The Applicant has recently attended counselling sessions with STARTTS in September and October and he is currently on a waiting list to be allocated further counselling by them. Mr Borenstein considered this to be most favourable for the Applicant. In a psychological assessment report from STARTTS dated 17 September 2024, Ms Pearl Fernandes, a clinical psychologist, said that the Applicant is likely to maximise the benefits of specialist trauma counselling when assured of safety and certainty in Australia.
It is my view that the risk to the Australian community of further offending by the Applicant is minimal because the applicant has shown that he is sufficiently rehabilitated and motivated, primarily because of his children, to not re-offend. The Applicant understands that he needs to continue to receive treatment for his mental health and I am very confident that he will do so and that he will not re-offend.
Conclusion as to protection of the Australian community – 8.1 of Direction 110
The Respondent notes correctly that, irrespective of my decision, the Applicant will remain in the community. However, the Respondent submits that the protection of the Australian community is best served by the Applicant remaining in the community but subject to strict visa conditions designed to ensure community safety. In addition to reporting daily, the bridging visa conditions require the Applicant to do everything possible to facilitate his removal from Australia. It is understandable that the Applicant wants his previous visa to be reinstated so that he can enjoy the freedom and certainty associated with being a permanent resident of Australia.
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens,[21] but in present circumstances the Government can no longer keep the Applicant outside of the community in detention and as accepted by the Respondent, his removal from Australia is unlikely. I take into account that the Applicant has committed serious crimes but he has not been convicted of any further criminal offending since his 2016 matter and he has shown himself able to behave in the community for a period of about 20 months from August 2016 to May 2018 and in the last six weeks since his release from detention on 22 October 2024. He now lives in a stable environment with his wife and two children and has support from his wider family.
[21] Direction 110 at 8.1(1).
I note that even if I decide to not revoke the cancellation decision, any risk posed by the Applicant to the Australian community will remain because the Applicant will be in the community, albeit that the risk may be slightly reduced because of the bridging visa conditions which are designed with the safety of the community in mind.
In the circumstances where there remains some risk of re-offending, I conclude that the protection of the Australian community is a factor that weighs against the Applicant, but I give this consideration little weight for two reasons. First, the risk of the Applicant re-offending is low. Second, keeping the Applicant on a bridging visa will not provide any significant additional protection to the Australian community because the applicant will be in the community irrespective of my decision.
Family Violence – 8.2 of Direction 110
The applicant has not committed family violence. The respondent accepts that this factor is neutral.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 110
This primary consideration provides at paragraph 8.3 of Direction 110:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has lived in Australia since he was nine years old. The Applicant experienced difficulties as a youth in Australia but he went to school and did well before leaving in year 12. He has been in Australia for 25 years which represents the majority of his life. He has contributed to the Australian community by his education and employment and by looking after his mother. He has no family left in Jordan, but he has his mother, half-brother, wife and two children in Australia. His wife, mother and half-brother provided statements and oral evidence in support of the Applicant. It is clear that he has a strong relationship with all members of his family who will be very disappointed if the Applicant is not successful on this application. He maintains strong connections to his family. Less weight would be given to this factor because, whatever decision is made, he will remain in the community and be able to continue to develop and enjoy these relationships.
In conclusion with respect to ties to Australia, I place significant weight on the fact that the Applicant has spent 25 years in Australia which is almost three quarters of his life. The Applicant has all his family in Australia and has made a contribution to the Australian community through his attendance at school and his various jobs. The Respondent accepts that this consideration should be given heavy weight in favour of revoking the cancellation decision and I agree.
Best interests of minor children – 8.4 of Direction 110
I must determine whether the visa refusal and the non-revocation of the cancellation of the Applicant’s visa is, or is not, in the best interests of a child who is affected by the decision. The following factors that I must consider where relevant to this application include:[22]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[22] Ibid 8.4(4).
The Applicant has two children aged 7 and 6 years old. The Applicant’s wife described what a loving husband and father that Applicant is. She described how happy the children were when they saw their father on the day he was released from detention. There has been a long period of absence when the Applicant was in prison and detention but the relationship remains strong and I believe that the children will benefit greatly by his love and support as a father whilst they grow up. The Applicant’s wife has acted as a sole parent since 2018 and she has expressed her support for the Applicant to help her bring up the children.
I consider that it would be in the best interests of the Applicant’s children for the cancellation decision to be revoked, although I note that, irrespective of my decision, the Applicant will remain in the community with access to his children. The Respondent accepts that this consideration should be given heavy weight in favour of revocation and I agree.
Expectations of the Australian community – 8.5 of the Direction
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[23] The Applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. The Applicant’s criminal conduct was serious but I do not consider that there is an unacceptable risk of further re-offending. I take into account that the Australian community may afford a higher level of tolerance of the Applicant’s criminal past because he has lived in Australia for most of his life and from a very young age.[24]
[23] Direction 110 at 8.5(1).
[24] Direction 110 at 5.2(6).
I conclude that the Australian community expects that the Australian government should not revoke the cancellation decision. This is a factor that weighs in favour of non-revocation of the cancellation decision but only moderately so.
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the Applicant’s visa, I must also take into account the ‘other considerations’ listed in the Direction, but these are not exhaustive.[25]
[25] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal Consequences of Decision – 9.1 of Direction 110
Both parties accept that if the cancellation decision is not revoked, there is no real prospect that it will be practicable to remove the Applicant to Jordan or some other country in the foreseeable future.
This is not a case where removal or further detention would be a consequence of not revoking the cancellation decision. The Applicant will stay in the community if the cancellation decision is not revoked, but he will remain subject to the conditions of his bridging visa. By contrast, if I find in favour of the Applicant, he will regain his visa which will allow him to remain in Australia permanently without the conditions of a bridging visa. The preferable outcome for the Applicant is that his previous visa is reinstated so that he avoids the restrictions and uncertainty of a bridging visa. The Respondent contends that this is a factor that is neutral but I consider that the legal consequence of potentially remaining subject to a bridging visa is a factor that weighs in favour of revoking the cancellation decision, but with very limited weight given that the differences in potential outcomes are not as significant as they used to be when removal or further detention were potential outcomes.
Extent of impediments if removed – 9.2 of Direction 110
Direction 110 requires that I consider the extent of any impediments that the Applicant may face if removed from Australia to his home country in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
Paragraph 6 of Direction 110 only requires a consideration to be taken into account where relevant to the decision. I consider that the extent of impediments if removed is not relevant in this case because both parties accept that, irrespective of the outcome of this matter, there is no prospect of him being removed from Australia. In this regard, I note that the Applicant is effectively stateless because Jordan, the country where he was born, does not accept that he is a Jordanian citizen.
It follows that no or neutral weight would be given to this consideration.
Impact on Australian business interests – 9.3 of Direction 110
There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION
I have considered the specific circumstances relating to the Applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.
The primary considerations of the protection and expectations of the Australian community weigh against the Applicant, but only moderately so, particularly in circumstances where the Applicant will remain in the community irrespective of my decision. I take into account that the Applicant last offended in 2016 and that he has since engaged in appropriate rehabilitation. I give significant weight to the opinion from Mr Borenstein, a very experienced clinical psychologist, that there is an extremely low risk of him re-offending. The Applicant has expressed genuine remorse and has taken adequate steps to rehabilitate himself. I take into account that the protection of the Australian Community is ‘generally’ to be given greater weight than other primary considerations, but in this case, it is outweighed by the significant ties that the Applicant has made to Australia over the last 25 years and the best interests of his children. Those ties to Australia and the interests of his children are both primary considerations and they significantly outweigh the protection and expectations of the Australian community.
In conclusion, I am satisfied that there is another reason to revoke the cancellation decision.
The decision of the Tribunal is to set aside the non-revocation decision and to substitute a decision so as to revoke the cancellation decision.
I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.
..................[sgd]......................................................
Associate
Dated: 6 December 2024
Date(s) of hearing: 2 and 3 December 2024 Counsel for the Applicant: Nicholas Poynder, Rosny Chambers Solicitors for the Applicant: J Fhad, Just Defence Lawyers Counsel for the Respondent: Mark Cleary, Eight Selbourne Chambers Solicitors for the Respondent: N Chandra, Hunt and Hunt Lawyers
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