DVHR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2318

DVHR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2318 (21 July 2022)
Division:GENERAL DIVISION
File Number: 2022/3421
Re:DVHR
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:21 July 2022
Place:Perth

The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
................[Sgd].................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – whether there was family violence – best interests of the Applicant’s minor step-grandchildren – 18-year-old step-grandson with mental health issues – expectations of the Australian community – extent of impediments if removed to New Zealand – links to the Australian community – strength, nature and duration of ties to Australia – Applicant is a 56 year old man who has resided in Australia for 37 years – there is another reason to revoke the Cancellation Decision – Reviewable Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
CASES
Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2227
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 442
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
SCJD and Minister for Home Affairs [2018] AATA 4020
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Webb v Minister for Home Affairs [2020] FCA 831
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Commonwealth of Australia National Drug Strategy 2017-2026 (Department of Health, 2017)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.2(2)(a), 8.2(2)(b), 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
21 July 2022
BACKGROUND

The Applicant is a 56-year-old man who is a citizen of New Zealand. He arrived in Australia with his uncle in May 1985 when he was 19 years of age (R1/161). Since that time, he has not returned to visit New Zealand.
The Applicant has a criminal history in New Zealand and Australia. I discuss this history in detail below from para [43].
Relevantly, on 12 November 2019, the Applicant pled guilty, and was convicted of “trafficking in dangerous drugs” (methamphetamine) for which he was sentenced in the Rockhampton Supreme Court to two years and six months imprisonment, to be released on parole after serving six months of his sentence. He was also convicted but not further punished for the offence of “possessing anything used in the commission of crime” (R1/31 and 35; R2/229).
Consequently, the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (Visa) was cancelled on 28 November 2019, under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (R1/162) (Cancellation Decision).
The basis of the Cancellation Decision was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The notice of the Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision.
The original notice attaching the Cancellation Decision was sent under cover of a letter dated 28 November 2019 (R1/162-168). However, following concerns that the notice did not comply with the requirements of the Migration Act, the notice was reissued with a letter dated 13 December 2021 (R1/169-174).
In a request dated 13 December 2021, the Applicant requested revocation of the Cancellation Decision. He provided a personal circumstances form and subsequently provided further supporting documents (R1/38-158).
After considering the Applicant’s representations, on 28 April 2022, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (R1/9). This is the Reviewable Decision currently before me.
The Applicant was notified of the Reviewable Decision on 28 April 2022, when it was emailed to his authorised recipient, being Ms J Samuta, the Applicant’s legal representative (R1/215-216).
On 29 April 2022, the Applicant lodged an application in the General Division of this Tribunal seeking a review of the Reviewable Decision (R1/1-6). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the

84-day period started running from 28 April 2022, meaning that I must hand down a decision on or before 21 July 2022.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
I heard this application on 4 July 2022 at the Perth Registry of the Tribunal. The hearing was conducted by Microsoft Teams.
The Applicant was represented by Ms J Samuta of Samuta McComber Lawyers. The Respondent was represented by Mr J Papalia of The Australian Government Solicitor.
The Applicant gave oral evidence at the hearing and was cross-examined. I found him to be a credible and honest witness.
The Applicant called his stepdaughter in law, JM, who gave evidence at the hearing and was cross-examined.
I admitted the following documents into evidence at the hearing:
(a)Applicant’s further evidence intended to be relied on, comprising pages 1 and 2 (Exhibit A1);
(b)Applicant’s further evidence intended to be relied on, comprising pages 3 through to 13 (Exhibit A2);
(c)G-Documents, labelled 1 to 5, comprising pages 1 to 222 (Exhibit R1); and
(d)Supplementary G-Documents, labelled SG1 to SG134, comprising pages 223 to 602 (Exhibit R2).
Prior to the hearing the Applicant filed a Statement of Facts, Issues and Contentions (SFIC) dated 1 June 2022. The Respondent filed a SFIC dated 24 June 2022. The Applicant filed a Reply on 29 June 2022.
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 90) must consider the primary considerations listed in para 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).
Specifically, para 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in

Direction No 90 can be found in para 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As noted in the background section above, on 12 November 2019, the Applicant pled guilty, and was convicted of “trafficking in dangerous drugs” (methamphetamine) for which he was sentenced in the Rockhampton Supreme Court to two years and six months imprisonment.
The Applicant has therefore been sentenced to a term of imprisonment of 12 months or more, and as a result, does not pass the character test by operation of s 501(7)(c) of the Migration Act. As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act). The Applicant concedes that he does not pass the character test.
In Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 442 at [29], Senior Member Nikolic explained the meaning of “another reason” with reference to the Full Federal Court’s decision in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 (Viane), [64] per Colvin J:
It is common ground the Applicant fails the character test. As such, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the reviewable decision. The issue to be determined is whether there is ‘another reason’ for revocation. This task was considered by the Full Court of the Australian Federal Court (FCAFC) in Viane:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.

That is, there must be “a reason that carries sufficient weight or significance” (Viane) for me to be satisfied that the Cancellation Decision should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 90 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Applicant has a criminal history in New Zealand between 1980 and 1985 when he would have been approximately 15 to 20 years of age. These were less serious offences involving burglary, and theft of property and cars, as well as four driving offences (R2/317-318).
The Applicant has a lengthy criminal history in Australia. As I outline below, his offending is somewhat frequent in that it spans a total period of approximately 33 years. However, there are several gaps in his offending where he has not been convicted of any offending for several years.
His first driving/ traffic offence of “driving a motor vehicle whilst blood alcohol content was .11%” was committed on 21 September 1985, approximately four months after arriving in Australia. His first criminal offence of “break, enter and steal” was committed on 21 June 1986. The Applicant denies committing this offence. However, he was convicted in the District Court by a jury, and I am required to accept the fact of this conviction.
The Applicant has appeared in court on approximately 20 occasions since his arrival in Australia. His offences range from less serious offences involving property and dishonesty such as “break, enter and steal”, “false pretences”, “possession of property suspected of being tainted”, “wilful damage” and multiple breaches of court orders including fine orders, bail, bail undertakings, and failing to appear. In 1994 he committed the drug offences of “possession dangerous drug” and “supply dangerous drug to another” which were dealt with by way of fines. These less serious offences mostly occurred between 1985 and 2001 (although there was a gap in his offending of approximately three years between 1998 and 2001) and were dealt with mostly by way of fines and four short sentences of imprisonment ranging from terms of one week through to six months.
There was another gap in the Applicant’s offending for approximately four years from 2002 until approximately 2005. In 2005, the Applicant was convicted of “dangerous operation of a vehicle and adversely affected by an intoxicating substance with two prior convictions”. This offence was committed on 25 May 2005. The Applicant received a sentence of five months imprisonment suspended for 18 months and a drivers’ licence disqualification for 30 months. He was also convicted of offences which occurred on 20 June 2005 being “common assault” and “DFVPA [Domestic and Family Violence Protection Act] Breach of Order – Resp served with order” (DFVPA Breach Offence) for which he appears to have received fines of $400 and $300 and imprisonment for eight days and five days respectively. I discuss the details of the common assault and DFVPA Breach Offence below under the family violence consideration. In short, the Applicant thinks that the DFVPA Breach Offence may have involved his former partner (now close friend), KM, but that it did not involve violence. He did not think the common assault offence was related and cannot recall the details.
On 30 September 2020, the Applicant was convicted of “assaults occasioning bodily harm” which occurred some 15 years earlier, on or about 10 March 2005. According to the sentencing remarks, the victim stole from the Applicant, who punched the victim “a number of times” using “not an insignificant use of force”. The Applicant was sentenced to a term of imprisonment of six months which was suspended for nine months (R2/430-431).
There was another gap in the Applicant’s offending from mid-2005 until he was convicted of another “common assault” charge which occurred on 12 January 2015, for which he received a probation period of 15 months. The Applicant explained in his written statement dated 29 June 2022, that this was a verbal altercation with a “random woman” he bought car parts from, who changed her mind, and started to insult the Applicant and his friends. The Court Brief from the Queensland Police recorded that the Applicant admitted to the police that he pushed the female victim in the right shoulder (R2/237). In his written statement, the Applicant said that he did not push the woman and instead that he put his hand on her shoulder (A2/12-13, paras [29]-[30]).
There was another break in the Applicant’s offending for another two and a half years. He committed a series of drug-related offences from this time. These offences included “possessing dangerous drugs” and “possess utensils or pipes etc that had been used” for drugs in May 2018, July 2018 and October 2018. He also had convictions for “possess property suspected of having been used in connection with the commission of a drug offence” in May 2018 and July 2018. During this time the Applicant was convicted of an “offence in relation to unauthorised and prohibited explosives” on 26 October 2018. In his written statement the Applicant explained that these were fireworks which he did not realise were illegal explosives. He said he was confused because the police only removed one of the fireworks after their search, leaving the rest at his residence (A1/13, paras [33]-[34]). These were dealt with by way of probations and fines which tends to suggest the offending was of a less serious category.
From the end of 2018, the Applicant’s offending became, in my view, more serious, with two “common assault” offences committed on 19 December 2018, as well as the offence of “enter dwelling with intent uses/ threatens violence” (para 8.1.1(1)(d) of Direction No 90). This appears to have been a dispute about the ownership of the Applicant’s ute where the Applicant entered the premises of the man and woman he was having the dispute with and threatened them (R2/284). Unfortunately, the facts of this offence were not put to the Applicant at the hearing. He was sentenced to two month and four-month concurrent terms of imprisonment for the assaults, and a nine-month concurrent term of imprisonment for the enter dwelling offence. The imposition of that sentence of imprisonment tends to suggest the seriousness of that offending.
As I noted above in the background section, on 12 November 2019, the Applicant pled guilty, and was convicted of the offences that resulted in the Cancellation of his Visa. These were “trafficking in dangerous drugs” (methamphetamine) for which he was sentenced in the Rockhampton Supreme Court to a two year and six-month term of imprisonment, to be released on parole after serving six months of his sentence. He was also convicted but not further punished for the offence of “possessing anything used in the commission of crime”. According to the sentencing remarks, the Applicant was selling methamphetamine he sourced weekly from another supplier over a five-month period. The Applicant also collected drug money on behalf of his supplier, helped his supplier locate a person who owed him a drug debt, and allowed his supplier to deposit $3000 drug money into the Applicant’s bank account. The Applicant made a “small profit of two to three-hundred dollars a week selling drugs”. The sentencing Judge also observed that the Applicant was “motivated by [his] own drug use and for commercial award”. An aggravating feature was that the Applicant was trafficking in methamphetamine whilst he was on bail, resulting in two bail orders being breached. The sentencing Judge also observed that the Applicant co-operated with police and “made full admissions for the trafficking”, without which it was unlikely the trafficking charge could be substantiated. Relevantly, the sentencing Judge referred to the “seriousness of the offence” (R1/31-32, 34-35).
As is evident from the above discussion, the Applicant’s offences range from less serious through to serious. Direction No 90 provides that “violent crimes” are “very serious” (para 8.1.1(1)(a)). I note the Applicant has several assault convictions, which nevertheless appear to fall within the less serious end of the scale for these offences. He has not committed any of the offences categorised as “serious” in para 8.1.1(1)(b) of Direction No 90.
However, the conduct described in those sub-paras is not exhaustive, and the Tribunal has previously recognised that other types of offences can be categorised as “very serious” or “serious”. For example, the Tribunal has previously recognised the harmful effects of drugs on the community (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 (SCJD) at [81]–[83]). These harms will also be discussed below with respect to para 8.1.2 of Direction No 90. However, based on the facts of the “trafficking in dangerous drugs” (methamphetamine) offence and the sentencing remarks which refer to the seriousness of the offending and the harms that drugs can cause to the community, I find that offending to be serious. The seriousness of that offending is also indicated by the two-and-a-half-year sentence of imprisonment (with a requirement to serve six months imprisonment) the Applicant received (para 8.1.1(1)(c) of Direction No 90).
I consider that there is some cumulative effect of repeat offending given the Applicant’s numerous court attendances, breaches of court orders and his custodial sentences of imprisonment (para 8.1.1(1)(e) of Direction No 90).
The Applicant has not provided any false or misleading information to the Department (para 8.1.1(1)(f) of Direction No 90).
Paragraph 8.1.1(1)(g) of Direction No 90, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. He has not received any warnings of this nature.
Overall, the Applicant’s offending ranges from those that can be categorised as having a low to moderate degree of seriousness, through to his most recent drug trafficking offence which can be categorised as serious. He has assault convictions, although they appear to be at the less serious end of the scale for those types of offences. He has a lengthy criminal history which would have had a cumulative effect. There are gaps in his offending, however there is a slight increase in seriousness in his offending overall.
Overall, I find that the Applicant’s offending ranges from offences that are of a low-level of seriousness, through to more serious offences. On balance, I find that para 8.1.1 of Direction No 90, the nature and seriousness of the conduct, weighs moderately against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
The Commonwealth of Australia National Drug Strategy 2017-2026 (Department of Health 2017), pages 4-5, lists the direct and indirect harms that drugs cause to the Australian community, families and individuals. These include injury, chronic conditions and preventable diseases, mental health problems, violence and other crime, engagement with the criminal justice system more broadly, contribution to domestic and family violence and healthcare and law enforcement costs. The National Drug Strategy also states that “[s]ome of the harms that can arise from the use of methamphetamines and other stimulants include mental illness, cognitive impairment, cardiovascular problems and overdose” (page 30).
The dangers associated with methamphetamine (also known as methylamphetamine) were described by the sentencing Judge on 12 November 2019 (R1/34) when sentencing the Applicant for the offences that resulted in the cancellation of his Visa:
… methylamphetamine is very highly addictive and causes enormous damage within our society. Criminal acts, violence that you are well-aware of and perhaps some more violence that you are not aware of, but this Court and other Courts deal with it on a day-to-day basis. There are serious assaults with respect to the enforcement of drug debts. There are deaths. There are stabbings. It is a terrible drug …
The harms to the community, and to individuals in the community, of trafficking in drugs were recognised in SCJD, which I have also referred to above, where Senior Member Cameron stated at [81]–[83]:
The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.
In Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2227 at [43], Deputy President Boyle cited relevant Federal Court authorities to observe that even when drug related offending does not cause direct harm, or has no apparent victim, “committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result”.

In summary, purchasing, possessing, and selling drugs supports the illicit drug trade in the Australian community. The prevalence of drugs causes harm to the community on many levels. These harms include the prevalence of drug related crimes, including violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families. Should the Applicant commit more drug offences, the harm that could result could be very serious.
If the Applicant was to reoffend in a violent manner, the harm that could result to members of the Australian community could include psychological harm, serious physical injury, impairment or even loss of life. General offending such as entering a person’s home without consent, even in the absence of any violence, can cause a range of harms, including psychological harms to victims.
The harms that can result to members of the public (including innocent road users and pedestrians) from driving/ traffic related offences are potentially very serious, and include physical injuries or loss of life, and possibly psychological harm. However, as the Applicant’s last driving/ traffic related offence was approximately 17 years ago in May 2005, I am of the view that there is a very low likelihood of the Applicant committing driving/ traffic offences in the future.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).
The Applicant has a lengthy criminal history spanning approximately 33 years. At the time of his most recent offending, being the drug offences which led to the cancellation of his Visa, the Applicant was 52 to 53 years of age. The Applicant has a long history of offending between the ages of approximately 20 to 53 years of age. In addition, the Applicant has numerous breaches of court orders, with the cancellation offences being committed whilst he was on bail in breach of two bail orders. This history suggests that the Applicant is undeterred by court-imposed orders and sentences of imprisonment. Overall, this tends to suggest a likelihood of reoffending.
The Applicant is, however, capable of living in the community without offending, as is evidenced by the gaps in his offending I described above. When asked about the gap in his offending between 2001 and 2006, the Applicant stated that he was working as a house relocator (transcript/16-17). Similarly, the Applicant stated that during the other gap in his offending between 2006 and 2015 he was also working as a house relocator. However, his evidence was that after this gap in his offending he was bitten by a redback spider which fell into his boot when he was walking. The bite became ulcerated and would not heal, which resulted in his being off work on workers’ compensation for 12 months in 2017. It was during that time that the Applicant turned to drugs to take the pain away (transcript/30). This led to further offending which was primarily drug related. The Applicant initially used methamphetamine in his twenties but stopped using it after he got into trouble for possession in 1994 (R1/63, para [10]). After he was bitten by the redback spider, he became depressed due to his slow recovery and started to use alcohol and drugs more often. His evidence was that he used methamphetamine approximately one to three times a week because it helped block his pain and gave him energy and motivation (R1/63, para [10]-[14]).
The Applicant admitted to having issues with alcohol in the past. His evidence was that he started drinking when he was 18 years of age and admitted to regular binge drinking in his twenties and thirties. His evidence was that he stopped his problematic drinking in 2015 or 2016. The Applicant recognised that alcohol played a role in his offending in the past. His evidence was that prior to going to prison in 2020 a carton of beer would last him two to three months (R1/63, para [9] and 66, para [45]).
To the Applicant’s credit, when released on bail in 2018, he decided to address his drug use. He voluntarily stopped using drugs approximately 12 months before going to prison (A1/66, para [47]). When sentencing the Applicant on 12 November 2019, the sentencing Judge referred to the Applicant having engaged with an association that provides drug and alcohol treatment services called “Lives Lived Well”. The sentencing Judge observed (R1/33):
The letter from Lives Lived Well confirms that you have attended on several occasions to that program. That you have also kept in regular contact and that you are progressing towards a drug-free lifestyle. You provided two negative drug screens of the 16^th and 30^th of October 2019.
A letter dated 24 June 2022 from Lives Lived Well (A2/4) states that the Applicant attended seven alcohol and drug counselling appointments at Rockhampton Community Corrections between 26 September 2018 and 19 June 2019. He then attended seven telephone appointments between 6 May 2020 and 7 September 2021. The letter describes the Applicant as “highly engaged, motivated, and proven to be polite and courteous” during his counselling appointments and confirms that the organisation can continue to support him. It also summarises the work completed with the Applicant to date as:
·     An initial assessment;
·     Provided education about ways to manage triggers and cravings;
·     Identified [the Applicant’s] elevated risk situations.
·     Provided education on developing a relapse management and prevention plan.
·     Relapse prevention plan completed.
The Applicant’s evidence was that his counsellor at Lives Lived Well helped him to learn techniques to address his drug and alcohol abuse, such as substituting drugs with something non-harmful when experiencing cravings. His evidence was that he no longer experiences cravings for drugs (R1/66, paras [48]-[49]).
The Applicant also stated that he cut ties with anti-social people prior to going to prison in 2019 and now he only has contact with close family and friends (R1/66, paras [50]). His stepdaughter in law is a pro-social person who is opposed to drugs. She has given him an ultimatum that if he uses drugs again, she will cut him out of her life, and her children’s lives for good. The Applicant also appreciates the detrimental impact that his offending, imprisonment and detention, and now Visa cancellation, has had on JM, and her children, F, A, K and J. The interests of F, A and K have been dealt with under the primary consideration of the best interests of minor children below. J’s interests have been dealt with as a separate other consideration because he is 18 years old. J suffers from mental health issues, and it is part of the Applicant’s plan that, if released into the community, he will be a carer for J, and will be actively involved in his step-grandchildren’s lives. I accept that the Applicant is a loving step-grandfather and his appreciation of the detriment these family members have suffered, together with the fear of not seeing them again (from being cut-off or from deportation) is likely to further motivate the Applicant not to reoffend. He has responsibilities to help JM with her children, including as a carer to J. He understands they are relying on him, and I believe he is highly motivated not to let them down again.
The Applicant is genuinely remorseful for his offending and the impact that it has had on his family. He has also been stressed and anxious in immigration detention about the outcome of this application and is worried about being in immigration detention following the recent stabbing and death of another detainee and a riot (A1/12, paras [23]-[26]). It is to his credit that he is continuing with his rehabilitation when subject to these stressors.
During his most recent sentence of imprisonment, the Applicant continued his drug and alcohol counselling through Lives Lived Well. He completed Managing Anger courses between October 2020 to January 2021 (R1/116-120), Lifeskills courses focussing on substance abuse between July 2020 and August 2021 (R1/121-130), and weekly Men’s Group from July 2020 to September 2021 (R1/131-144). The Applicant engaged with these courses until the person running them stopped working at the detention centre (R1/66, para [52]). He completed another “drug and alcohol abuse 101” course on 31 May 2022 (A1/2). The Applicant was able to clearly articulate the gains he made from completing these courses (R1/67, paras [55]-[58]). He was also able to describe how he would have walked away from the situation that led to the common assault offence on 12 January 2015 (A2/12-13, para [29]).
He was also able to articulate his plans for rehabilitation and reintegration into the community including continue to engage with his drug and alcohol counsellor from Lives Lived Well monthly, seeking support from and spending time with pro-social family and friends, focussing on hobbies such as fixing cars, art and model building, moving to live close to his family and friends and finding work again as a removalist (R1/67-68).
In summary, there are factors that suggest there is a likelihood of the Applicant committing further drug related offences and possibly violent offences at the more minor end of the scale such as common assault. These factors include his:
·lengthy criminal history and lack of deterrence of court-imposed penalties such as fines and sentences of imprisonment;
·problematic past alcohol use and drug addiction which contributed to his offending; and
·prior poor history of compliance including committing the cancellation offences whilst he was on bail.
It is my view, however, that if the Applicant can abstain from alcohol and drug use, there is a low to moderate likelihood of his reoffending. The factors that suggest this likelihood of reoffending include:
·the gaps in his offending which suggest he can live offence-free in the community if he is gainfully employed or otherwise productively using his time;
·his willingness to seek employment;
·his responsibility as the carer for J who is relying on him for guidance and support;
·the cessation of his problematic drinking and substance abuse, including his not using drugs for 12 months prior to his most recent imprisonment until the current time;
·his cessation of association with negative peers and support from pro-social family and friends;
·his time in immigration detention which he has found to be a stressful experience, and his fear of deportation;
·his remorse for his offending and his appreciation of the hardship his imprisonment, detention and potential deportation have had on JM, J, F, A and K who are relying on him for support, as well as the fear of being separated from them;
·his self-referring to counselling with Lives Lived Well prior to his sentencing and continued engagement with them;
·his completion of voluntary courses in areas relevant to his offending including drug and alcohol misuse and anger management, together with his ability to articulate gains he made from completing those courses; and
·his development of a relapse plan and his having a clear plan as to how he will reintegrate into the Australian community and make meaningful use of his time.
I therefore find that para 8.1.2 of Direction No 90, being risk to the Australian community should the Applicant commit further offences, weighs moderately against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 90
I have found that para 8.1.1 and para 8.1.2 of Direction No 90 both weighed moderately against revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)
Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.       the extent to which the person accepts responsibility for their family violence related conduct;
ii.      the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.     efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Family violence is defined in the interpretation section of Direction No 90 at paragraph 4(1), which provides, in part:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a)an assault; or
b)a sexual assault or other sexually abusive behaviour; or
c)stalking; or
d)repeated derogatory taunts; or
e)intentionally damaging or destroying property; or
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
(Original emphasis.)
On 9 August 2006, the Applicant appeared in the Rockhampton Magistrates Court for offences including “common assault” and the DFVPA Breach Offence which both had offence dates of 20 June 2005. In a written statement dated 24 March 2022, the Applicant stated (R1/65):
31.With respect to the offence of Breach of Order – Resp served with order (on 20 June 2005). I believe that this incident occurred with [KM], my on and off partner for the last 15 years. [KM] and I remain close to this day.
32I cannot remember what happened to cause this offence, and neither could [KM] when I asked her about it.
33.I would not have been violent towards [KM] because I loathe domestic violence after I grew up exposed to domestic violence against my mother.
There are is a statement from KM dated 3 May 2020 and a brief statutory declaration from her dated 30 December 2020 before me (R1/98-99). Both documents are supportive of the Applicant staying in Australia and indicate that KM would be upset if the Applicant was removed from Australia. Neither the statement nor the statutory declaration mentions the DFVPA Breach Offence, or any other offence.
Additionally, the materials produced under summons by Queensland Police do not contain any details of this offence.
Although the “common assault” offence has the same offence date, again there are no details of this offence in the materials before me. There is insufficient logically probative evidence upon which I could conclude that the two offences were linked.
In summary, even though the Applicant was convicted of the DFVPA Breach Offence, no details of the offence are available to me, other than an uncertain recollection from the Applicant that it may have involved his then partner, KM. As such, I find that there is insufficient evidence of any engagement in “family violence” (para 8.2(2)(a) of Direction No 90). Further, there is insufficient evidence from other independent and authoritative sources that would allow me to be reasonably satisfied that the Applicant had been involved in the perpetration of family violence (para 8.2(2)(b) of Direction No 90).
I therefore find that this primary consideration is not relevant.
The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction No 90)
Paragraph 8(3) of Direction No 90 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration.
Direction No 90 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first three paras of 8.3 provide:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of Direction No 90 sets out the factors that the decision-maker must consider:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

I find that the primary and other considerations that weigh in the Applicant’s favour, but particularly the consideration of the best interests of the Applicant’s step-grandchildren, and the other consideration of the best interests of 18-year-old J, are significant reasons which carry significant weight, such that I am satisfied that the Cancellation Decision should be revoked (Viane). As there is another reason why the Cancellation Decision should be revoked, the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 167 (one hundred and sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

................[Sgd].....................................................
Associate
Dated: 21 July 2022

Date of hearing: 4 July 2022

Representative for the Applicant: Ms J Samuta, Samuta McComber Lawyers

Representative for the Respondent: Mr J Papalia, The Australian Government Solicitor

Date of hearing:	4 July 2022
Representative for the Applicant:	Ms J Samuta, Samuta McComber Lawyers
Representative for the Respondent:	Mr J Papalia, The Australian Government Solicitor