Edmonds and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Edmonds and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3191 (28 September 2022)
Division:GENERAL DIVISION
File Number(s): 2022/5950
Re:Kelly Ruth EDMONDS
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:28 September 2022
Place:Sydney

The correct or preferable decision is to affirm the delegate’s decision not to revoke the mandatory cancellation of the applicant’s Class BB (Subclass 155) Five Year Resident Return Visa.
.............................[SGD]..........................................
The Hon. John Pascoe AC CVO, Deputy President
Catchwords
MIGRATION - visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where the applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Direction No. 90 – protection of the Australian community – best interests of minor children – expectations of the Australian community – links to the Australian community – decision under review affirmed.
Legislation
Migration Act 1958 (Cth) s 499, 501
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
28 September 2022

This matter concerns an application for review by the applicant of a decision of a delegate of the Minister not to revoke the mandatory cancellation of the applicant’s Class BB (Subclass 155) Five Year Resident Return Visa (‘the visa’).
Background
The respondent’s Statement of Facts, Issues and Contentions contained a helpful summary of the background of this matter, much of which is replicated below.
The applicant is a 42-year-old citizen of New Zealand. She first arrived in Australia on 7 October 1996, and has resided in Australia since 17 March 1999, at which time she was 18 years old.
The applicant has an extensive criminal history across Australia and New Zealand, beginning in 2000. She has received numerous convictions for drug-related offences, driving offences, resisting arrest, assaulting police officers, shoplifting and failures to comply with court orders and bail.
The applicant’s offending in New Zealand commenced when she was 18 years of age with a drink-driving offence. While the applicant was residing in New Zealand for a period of two months in 2011, she committed one count of shoplifting and two counts of burglary, for which she was convicted in 2015. She received a fine of $500 and a fine for reparations of $750 for one of the counts of burglary.
From 2009, the applicant began to engage in violent offending. On 20 April 2009, the applicant was convicted of Common assault-T2, with the conviction confirmed on 18 June 2009 and a sentence of two months’ imprisonment imposed. The applicant was convicted of Common assault-T2 again on 13 October 2010, for which she received a six-month section 9 good behaviour bond.
From 2019, the applicant engaged in an increasingly serious pattern of fraud-related offending. On 9 April 2019, she received a 12-month community-based order for two counts of CTH – obtaining a financial advantage. On 7 November 2020, the applicant received an aggregate term of two years’ imprisonment for two counts of Do act etc intending to pervert the course of justice-T1. On 19 November 2020, the applicant was sentenced to a four-month term of imprisonment for Dishonestly obtain property by deception-T1.
On 20 January 2021, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) . On 25 January 2021, the applicant sought revocation of the cancellation decision. On 11 July 2022, a delegate of the Minister decided not to revoke the mandatory cancellation of the visa pursuant to s 501CA(4) of the Act.
On 20 July 2022, the applicant lodged an application for review of the delegate’s decision with this Tribunal.
The Issue
At hearing, it was accepted by the parties that the applicant does not pass the character test as defined in s 501(6); and as such, the sole issue for determination by this Tribunal is whether there is another reason why the cancellation decision should be revoked under s 501CA(4) of the Act.
Law & Direction 90
The relevant legislation and policy is outlined below.
Section 501CA(4) of the Act states:
(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.
On 8 March 2021 the Minister made the Direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4). The Direction came into effect on 15 April 2021.
Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:
(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-biding, 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 measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be sufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.
Section 8 of the Direction provides that the four primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)the best interests of minor children in Australia (Primary Consideration 3); and
(d)expectations of the Australian community (Primary Consideration 4).
Section 9 of the Direction provides that the four other considerations which must be taken into account where relevant are:
(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.
Evidence
Evidence of the applicant
The applicant affirmed her statutory declaration of 9 August 2022.
The applicant arrived in Australia first in October 1996 and returned to New Zealand shortly thereafter. She returned to live in Australia permanently in 1999. She was granted a Class BB (Subclass 155) Five Year Resident Return visa.
The applicant took fairly regular trips back to New Zealand for family occasions and holidays. She has extended family in New Zealand including aunties, uncles, cousins and her brother Jason and his family.
In relation to her family, the applicant said that her brother was struggling with personal issues with his family, primarily ‘getting his children back’.
She said that she did not have a strong relationship with other members of her family and that there were problems with gangs, drugs and alcohol. She said she would be reluctant to impose on her brother because of the issues he was dealing with.
The applicant said that she had no health issues, either now or in the past, and that she had worked, primarily casually, in factories in Australia. She was not sure whether she would be able to obtain such work in New Zealand and was not sure what requirements there would be. The applicant said that apart from her family, there was nothing for her in New Zealand.
The applicant made clear that, regardless of whatever she had said in the past, that she did not want to go back to New Zealand, that it was not a good place for the children, and in any case that her former partner ‘H’ would strongly oppose her taking the children to New Zealand.
In particular, the applicant noted that if she was removed to New Zealand, she would have no housing, no job, and no familiarity with social security in that country.
When questioned about her drug use, the applicant said she had started using ice in 2019 and before that she had occasionally used marijuana, but there was no other drug use.
The applicant said that she had been introduced to ice by her partner H, from whom she is currently separated. H is currently in jail after being convicted of firearms offences and the earliest date for her release, if granted probation, is 2028.
The applicant conceded that she had a long history of criminal offending, which began within two years of her arrival in Australia.
The applicant accepted that she had forged medical documents indicating that her partner had cancer/lesions on the brain and that her cancer was terminal, knowing those documents were false but seeking to use them to get a reduction in her partner’s sentence and knowing that her partner did not have cancer at all. The applicant admitted that she was not using ice in 2017 when she forged the documents, and that she had lied when she told the officers at NSW Department of Corrective Services that she had committed this offence whilst under the influence of ice.
The applicant said that ‘most people would do this for their partner’, however she did accept that her actions were not justified. After proceedings in the New South Wales Court of Criminal Appeals, the applicant was convicted and sentenced to two years in prison. The sentencing judge described the offences as ‘strik[ing] at the heart of the integrity of the administration of criminal justice’ which the applicant accepted.
The applicant also accepted that she had forged documents in early 2011 in relation to court proceedings in New Zealand. The documents claimed that her partner H needed to return to Australia for medical treatment, but these documents were untrue and the applicant knew that the statement her lawyer made to the court in relation to H’s need to return to Australia was untrue.
The applicant also accepted that statements made by her in 2010 to the effect that she had cervical cancer were untrue. The applicant accepted that what she had told officers in relation to her sentencing report regarding her medical condition was untrue, and that the medical certificate dated 4 September 2019 was not a legitimate certificate.
There was some lack of clarity in the applicant’s evidence regarding the certificate forged for her in 2019 that said she had cervical cancer, but the applicant accepted that she had at the very least allowed the statement to go forward to the court, knowing that it was untrue.
Under cross-examination, the applicant also accepted that she had been found guilty of a number of dishonesty offences, including defrauding the Commonwealth in relation to social security payments and that she had knowingly failed to provide correct details as to her income.
The applicant admitted that she been convicted of a number of common assault offences where she had punched another woman in the back of the head at a McDonald’s restaurant and that she had subsequently kicked the woman when she was on the ground, although she denied pulling her hair as detailed in the police report.
The applicant agreed that on a number of occasions she had failed to appear at court hearings in relation to offences for which she had been charged.
She also accepted that she had driven a vehicle whilst unlicensed and that when she entered Australia on multiple occasions between 2003 and 2010, she failed to disclose her criminal convictions, and deliberately marked ‘no’ on her arrival card.
The applicant admitted that she assaulted another detainee at the Villawood Immigration Detention centre. This assault meant that she was unable to complete the Drug & Alcohol program although she had largely completed the course at that time. The applicant had also completed an online program within the last week called ‘SmartRecovery’. The module she had completed took 60 minutes and there were other modules she was able to complete as part of the program.
When questions about the possibility of returning to New Zealand that she had previously considered returning to New Zealand and on 8 December 2020 had told the NSW Department of Corrective Services that she believed she and her partner might be deported, and in any event that it might be better for them to be returned to New Zealand to avoid any further problems in Australia, although the applicant said she could not remember the part about further charges.
When questioned about her children, the applicant said she had three children. They were the biological children of her partner H and a sperm donor Mr M. It would appear that Mr M played some limited role in the children’s lives, although they appear to have been cared for, at least for a period prior to each of them being convicted and sentenced to jail, by the applicant and her partner.
The applicant gave evidence that the children were in the care of their grandmother, J, who was H’s mother, and that they had been in J’s care since 2019. The applicant said she and H had decided to put the children in the care of their grandmother about six months prior to them both going to prison. This was because they did not want the children being involved in what was happening. The applicant said that J does not have any formal parenting orders or other arrangements in place in relation to the children.
Her former partner H was said to strongly opposed to the applicant having any role in the children’s lives, and she really did not know what H and her parents had in mind in relation to access to the children. The applicant said that she did want to look after the children once she had re-established herself in the community and that she may need to fight H in court in order to gain some parenting rights. She had not however looked into her legal rights or any future court proceedings. When asked about whether she would be able to provide financial support for the children if she was removed to New Zealand, the applicant said that she ‘had not looked that far into it’.
The applicant said that all parental decisions in relation to the children were made by J, who ‘only does what H tells her’.
The applicant said that she had ‘changed her ways’. She also said that if she were unable to take care of the children full time she would be happy for them to stay with their grandmother if she could spend time with them on weekends.
Evidence of Elaine Edmonds
Ms Edmonds affirmed her statement of 9 September 2022. When questioned, Ms Edmonds said that the children were being well taken care of by their grandmother J. She said that J herself was unwell and had diabetes, for which she was receiving dialysis treatment.
Ms Edmonds said that at the moment, the kids being with J was the ‘best place to be’. Ms Edmonds said that she hopes that in the future, the applicant would be able to stay in Australia and take care of her children.
Evidence of Dion Edmonds
The Tribunal received a statement from Mr Dion Edmonds dated 9 September 2022. Mr Edmonds was not called for cross-examination and his statement was accepted into evidence.
Primary COnsiderations
Primary Consideration 1 – Protection of the Australian Community
In considering this primary consideration, I have had regard to paragraph 8.1 of Direction 90.
There are two aspects to this consideration – the nature and seriousness of the conduct of the non-citizen, and the risk to the Australian community should the non-citizen reoffend.
Nature and seriousness of the applicant’s offending
It was accepted by both parties that the applicant has a long history of offending, and that the pattern of offending started within two years of her arrival in Australia and became more serious over time.
Of particular concern is that a number of the offences involved violence, including offences against police in the course of their duty, and there were a number of dishonesty offences including defrauding the Commonwealth.
I am especially concerned by the offending conduct relating to attempts to pervert the course of justice, both in Australia and New Zealand. These offences, as stated by the NSW Court of Criminal Appeals, ‘strike at the heart of the integrity of the administration of criminal justice’.
Such offences indicate a complete lack of respect for the criminal justice system and, more generally, the administration of justice in Australia. There was not just one offence involving the applicant’s partner, but further offences, designed to mislead and deceive, involving the applicant herself. The motive in all cases was to gain sympathy and avoid the consequences of unlawful behaviour.
The applicant has also demonstrated a complete lack of respect for the police and for others involved in the criminal justice system given not just her preparedness to lie, but also the lengths at which she was willing to go in order to forge documents and to make them look authentic.
Her offences in relation to social security fraud must also be viewed very seriously and indicate a lack of respect for the Australian community, given her willingness to defraud the Commonwealth of substantial sums of money, totalling about $100,000.
Overall, the applicant demonstrated an ongoing pattern of lying to the authorities in order to benefit herself and/or her former partner.
Overall, these offences, especially when taken cumulatively, must be regarded as extremely serious.
Risk of harm to the Australian community should the conduct be repeated
In considering this matter, I have regard to 8.1.2(2) of Direction 90.

The applicant has been assessed at being at medium risk of reoffending, both by the NSW Court of Criminal Appeal and in the sentencing assessment report dated 5 October 2020.
The applicant had a difficult upbringing, as noted by the NSW Court of Criminal Appeal which stated as follows:
The applicant resided in a low socio-economic area when in New Zealand and her family was poor. She was both a witness to and victim of domestic violence perpetrated by her father, who had gang affiliations, and she reported being exposed to drug use and antisocial influences from a young age.
This may explain at least some of her offending. I note that the applicant’s representative drew the Tribunal’s attention in particular to the applicant’s exposure to domestic violence, and stated that the impact of domestic violence was relevant to the applicant’s moral culpability, as stated by the NSW Court of Criminal Appeal:
In the present case, I am satisfied that the applicant’s background was such as to impact upon her decision making in the context of her desire to maintain her family unit. In other words, I am satisfied that the applicant’s background has at least some impact on her moral culpability.
The applicant’s representative also drew the Tribunal’s attention to the fact that the applicant had not reoffended since the notification of her visa cancellation.
I take both the applicant’s exposure to domestic violence and the fact that she has not reoffended since her visa cancellation into account in my determination.
The applicant did display some remorse, and said that she was not the same person. She stated in her statutory declaration that her actions in relation to her latest convictions were done “out of desperation” to keep her partner out of jail, and that she thought at the time that she was “helping our children”. She has engaged in some rehabilitation, and I note also that whilst incarcerated the applicant was said by NSW Department of Corrective Services to have been hard-working, and that she had taken on a leadership role. She was said to be polite and respectful.
The applicant has also engaged in drug and alcohol programs while in detention, and in her statutory declaration she states that she has remained drug-free since H went to jail and throughout her time in detention, despite her having access to drugs.
On the basis of the evidence overall, I find that if returned to the community, the applicant would be of medium risk of reoffending.
Taken as a whole, this consideration weighs heavily against revocation.
Primary COnsideration 2 - Family vIolence
There is nothing before the Tribunal to indicate that this is a relevant consideration in this matter.
Primary Consideration 3 – best intersts of minor children
In this regard, I note paragraph 8.3 of Direction 90.
The applicant has three children – M, R, and O, all of whom are currently minors. M is aged 15, and R and O are 12. She also has a number of minor nieces and nephews in Australia.
I accept that the applicant wants to play a role in her children’s lives. However, it is not clear that even if the applicant were to remain in Australia that she would be able to play a role, particularly a significant role, in the children’s lives. She is not the biological mother of the children, and her evidence was that the biological mother, H, did not want the applicant to have any role in the lives of her children. I note that for the purposes of the Family Law Act 1975 (Cth), the biological mother is the ‘parent’ of the children, and in the absence of any agreement, the applicant would need to seek Parenting Orders through the family law system. There is simply not enough evidence to come to any view as to whether or not she would succeed.
I note that H’s mother J provided a statement to the Tribunal saying that she would not be opposed to the applicant having a relationship with the children, but J was not called to give evidence before the Tribunal, and the applicant said in her evidence that J would do what H wanted her to do. J also said in her letter that she would ‘need to learn to trust [the applicant] all over again’. I give some weight, however, to the fact that J stated she believes it to be in the best interests of the children for the applicant to remain in Australia.
It is also relevant that at the earliest, H will not be released from jail until 2028 if she is released on parole. At that time, all of the children will have reached adulthood.
Further, even if the applicant were to seek to re-establish contact with the children after re-establishing herself or being granted either limited access or care of the children, either by agreement or through court processes, the oldest child M will be 16, and the younger children approximately 14 years of age. They are likely to have independent views that would need to be taken into account.
There was no evidence as to how the children would feel about going to live with the applicant, either on a full or part time basis. There is some material before the Tribunal, in the applicant’s Personal Circumstances form, to suggest that the applicant has maintained daily contact with the children by phone and has a weekly videolink with them whilst in detention, although there was no oral evidence to this effect given at the hearing.
Both the applicant and the applicant’s mother assert that the applicant would be better positioned to support the children financially if she were allowed to remain in Australia. There was however no evidence that the applicant has supported the children in the past, although she did state that if she were allowed to stay in Australia she would be in a better position to support them in the future.
There was also a suggestion, although not much evidence adduced, that the applicant has minor nieces and nephews in Australia with whom she does not play a parental role, but is an active part of their lives. In her statutory declaration dated 9 August 2022, the applicant states that she is “very close” to her nieces and nephews, and that one of them is like a child to her.
Whilst I accept the applicant’s best intentions in relation to the children, and that she has a relationship with her nieces and nephews, the evidence does not support my giving a great deal of weight to this consideration, which does clearly weigh in favour of revocation.
I also take into account the statements to the Tribunal that H’s visa had also been mandatorily cancelled. If that cancellation was not successfully challenged, H may also be removed to New Zealand. Regardless, it appears that the earliest that H would be able to reunite with her children would be 2028.
In weighing the evidence as a whole, although it is clearly in the best interest of the minor children to have a relationship with the applicant given that she has played some role in their lives, there is no certainty as to the role she may be able to play in their lives in the future. Indeed, there is significant uncertainty as to her current and future relationships with the three children she shares with her partner H. There was also no evidence as to the views of Mr M, the biological father of the children, who was said to have some role in their lives although this was not clearly enunciated.
I note that the children are Australian citizens, and that the applicant’s evidence was that they are not citizens of New Zealand.
Overall, I give this consideration medium to heavy weight in favour of revocation.
PRimary Consideration 4 – Expectations of the Australian Community
Direction 90 sets out the expectations of the Australian community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4.
There is clear authority that it is not the Tribunal’s role to determine for itself the expectations of the Australian community. The Tribunal’s role is to determine the weight to be given to this consideration.
In determining weight, I have regard to the applicant’s long history of offending, her offences against the proper administration of the criminal justice system, and fraud against the government of Australia which is the representative of the people of Australia.
In this way, she has demonstrated a complete disrespect for the law and those who are required to enforce it.
I also take into account that the applicant has lived in Australia for twenty years and that she has been affected by domestic violence. Taking all factors into account, I find that this consideration weighs heavily against revocation.
Other Considerations
International non-refoulement Obligations
In this regard, I note paragraph 9.1 of Direction 90.
The applicant did not raise this as a relevant ground for consideration. However, I note that she did in her evidence refer to members of her family being engaged in drug use and gangs in New Zealand.
Such claims were not however particularised in any way, and there was no evidence at all to suggest that the applicant was at any real risk if she were to be returned to New Zealand.
Accordingly, I give this consideration limited weight in favour of revocation.
Impediments to removal
In this regard I note paragraph 9.2.1 of Direction 90.
The applicant grew up in the New Zealand, and came to Australia as an adult. She has significant extended family in New Zealand including her brother, who the applicant accepted was likely to help despite his own issues.
The applicant would be able to access health and support systems in New Zealand that are similar to those in Australia. The applicant may also be able to find similar work to that which she has previously engaged in Australia.
Clearly, the applicant would face a period of adjustment which may be of significant difficulty for her as she re-establishes herself in New Zealand, but this may be of limited duration and she is likely to receive some family support.
I accept the applicant’s evidence that, whatever she may have said in the past, she does not want to return to New Zealand at this time and that she has no job, no housing, and no familiarity with the social security system in New Zealand.
I give this medium to heavy weight in favour of revocation.
Impact on victims
There is nothing before the Tribunal to indicate that this is a relevant consideration in this matter.
Links to the Australian community
Strength, nature and duration of ties
The applicant’s mother, two sisters and numerous nieces and nephews live in Australia, and I accept that it would an emotional wrench for the applicant to lose contact with her mother and other family members in Australia.
The applicant’s nephew, Dion, has noted his affection and his close relationship with the applicant. He has offered for the applicant to live with him, and also employment with him at his current job.
The applicant would also be likely to be adversely affected by being separated from her children for whom she obviously has affection and a sense of responsibility regardless of the role she may have played in their lives to date.
Contact with the children via social media is not the same as physical contact.
I note that the applicant has been offered employment in Australia, and that she has previously worked in Australia and thus has some familiarity with the work environment in this country.
The applicant does not currently have a partner, and does not appear to currently contribute financially towards the children’s welfare, although I accept that this may have not been the case in the past, and that this may change in the future should the applicant gain reliable employment.
Impact on Australian business
There is nothing before the Tribunal to indicate that this is a relevant consideration in this matter.
I give this consideration medium weight in favour of revocation.
Consideration
When considered overall, those considerations that weigh in favour of revocation do not in my opinion outweigh those considerations which weigh against revocation.
The applicant’s long history of offending is extremely serious, and she is at medium risk of reoffending. The welfare of the children must be of particular concern but there was simply not enough evidence, particularly given the age of the children, that the applicant has played or will play a meaningful role in their lives. She has been incarcerated for the last three years. Even the applicant’s mother stated that the applicant’s children were best cared for by their grandmother, at least at this stage. It is also relevant that the children’s biological mother, H, apparently does not want the applicant to play any role in their lives.
The children have spent all of their lives in Australia and are Australian citizens who are likely to want to remain in Australia. The applicant is able to maintain a relationship with them from New Zealand, via social media and telephone. Whether the children would choose to return to New Zealand if the applicant and H are both returned to New Zealand is not clear, and would be a matter for them to determine once they are adults, especially given their current ages.
At the very least, the children are on the basis of all of the evidence, the children are best left in the care of their grandmother J. Any change to their status is likely to be the subject of proceedings in the family law system. Considered in its entirety, the best interests of the children which is often the strongest consideration in favour of revocation in similar matters, simply does not justify sufficient weight such that, together with the other considerations in favour of the applicant, it would outweigh those considerations which weigh heavily against revocation.
Decision
The correct or preferable decision is to affirm the delegate’s decision not to revoke the mandatory cancellation of the applicant’s Class BB (Subclass 155) Five Year Resident Return Visa.

I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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Associate
Dated: 28 September 2022

Date(s) of hearing: 15 September 2022

Solicitors for the Applicant: Ms M. Mamarot, South West Migration and Legal Services

Solicitors for the Respondent: Mr M. Sheedy, Sparke Helmore Lawyers

[2022] AATA 3191

28 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Date(s) of hearing:	15 September 2022
Solicitors for the Applicant:	Ms M. Mamarot, South West Migration and Legal Services
Solicitors for the Respondent:	Mr M. Sheedy, Sparke Helmore Lawyers