Farcas and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 825
•25 June 2025
Farcas and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 825 (25 June 2025)
Applicant/s: Farcas
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/5724
Tribunal:Senior Member Tavoularis
Place:Brisbane
Date: 25 June 2025
Decision:Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 7 August 2024 to not revoke the mandatory cancellation of the Applicant’s Class AS Subclass 801 Spouse visa.
...........................[SGD]..............................
Senior Member Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class AS Subclass 801 Spouse visa – Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 –– primary and other considerations – protection of the Australian community from criminal or other serious conduct – family violence committed by the non-citizen - the strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – decision under review affirmed.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison v The Minster for Immigration and Citizenship (2009) 106 ALD 666
Pavey v Minister for Home Affairs [2019] AATA 4198
PNLB v Minister for Immigration and Border Protection (migration) [2018] AATA 162Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Direction No 110 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Statement of Reasons
The Applicant is 34 years of age and a citizen of Romania. He first arrived in Australia in November 2002 aged 11 years on a Dependant Child (Class TK) (subclass 445) visa and has never departed this country. On 22 May 2019 pursuant to s 501(3A) of the Migration Act 1958 (“the Act”) his then-held Class AS Subclass 801 Spouse visa (“visa”) was mandatorily cancelled by a delegate of the Respondent. Following representations made by the Applicant, this mandatory cancellation decision was revoked on 26 March 2020.
There followed a second mandatory cancellation of the visa via a decision of the Respondent’s delegate on 17 March 2023. The Applicant again made representations seeking revocation of this further mandatory cancellation but they proved unsuccessful. On 7 August 2024 a delegate of the Respondent refused, pursuant s 501CA(4) of the Act, to revoke the second mandatory cancellation decision of the visa. I will hereinafter refer to this decision as “the decision under review”. By an application filed in this Tribunal on 9 August 2024, the Applicant seeks merits review of that decision.
The instant Hearing proceeded before me by video link on 5 and 6 June 2025. It received evidence from (1) the Applicant; (2) his current partner, Ms Chanel Spencer; (3) his sister-in-law, Ms Lara Anderson; and (4) his mother, Ms Victoria Duga. At the commencement of the Hearing, I sought and received the parties’ approval to a draft Exhibit List that had been circulated to them prior to the Hearing. That duly agreed draft Exhibit List now attached to these Reasons and marked ‘ANNEXURE A’ can be accepted as a true and correct summary of the entirety of the material before the Tribunal for present purposes.
As mentioned, the Applicant initially arrived here as an 11 year old in November 2002 and has spent the following almost 23 years continuously in this country. He is currently aged 34 years and has thus spent 67 percent of his life in Australia.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
4) The Minister may revoke the original decision if:
a)the person makes representations in accordance with the invitation; and
b)the Minister is satisfied:
i.that the person passes the character test (as defined by section 501); or
ii.that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the ultimately unsuccessful representations required by s 501CA(4)(a) of the Act. There remain two issues presently before the Tribunal. They are:
a)whether the Applicant passes the character test; and if not
b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
Does the Applicant pass the character test?
The Applicant does not pass the character test as a matter of law.[1] It is clear from his criminal history that he has received a sentence of imprisonment of 12 months or more[2] and thus has a “substantial criminal record”[3] which, in turn, compels this Tribunal to find he does not pass the character test. There was a helpful concession from the Applicant’s representative at the Hearing in this regard which has its echo in the Applicant’s Statement of Facts Issues and Contentions (“SFIC”)[4], that he does not pass the character test for present purposes.
[1] Harrison v The Minster for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[2] Section 501(7)(c) of the Act.
[3] Section 501(6)(a) of the Act.
[4] A1, p3, [14]-[15].
Is there another reason why the Decision to cancel the Applicant’s visa should be revoked?
In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa,[5] the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction 110[6] has application.
[5] Pursuant to section 501C(4) of the Act.
[6] Direction No 110 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA commenced on 21 June 2024. It replaces Direction No. 99 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA. I will hereinafter refer to Direction 110 as “the Direction.”
For the purposes of deciding whether or not to revoke the mandatory cancellation of a
non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:
a)legal consequences of the decision;
b)extent of impediments if removed; and
c)impact on Australian business interests.
I will now consider each of these primary and other considerations as may be relevant to the instant facts. Before doing so, I will note the mutually held positions of the parties that Primary Consideration 2 “family violence” and Other Considerations (a) “legal consequences of the decision” and (c) “impact on Australian business interests” are not relevant to determination of the instant application.[7]
[7] For the Applicant’s position, see A1, p 8, [38], p11, [52]-[53] and p12, [56]. For the Respondent’s position, see R2, p 7, [35]; p 9, [51]; p 10, [54].
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction stipulates that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
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.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that 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 and/or sexual 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, 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 impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)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).
(i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Application of factors appearing at paragraph 8.1.1(1) of the Direction
Prior to assessing the nature of the Applicant’s unlawful conduct in this country, it is necessary to make a specific finding in relation to which of his offences can be taken into account for present purposes. I am mindful of the risk involved in taking into account offending in respect of which a “no conviction recorded” notation appears as part of the language of the sentence. The Applicant has committed some 80 offences in Australia that were dealt with at 16 separate sentencing episodes. The first two offences (dealt with at the first two sentencing episodes) involved the commission of two offences which were convicted on the basis of a “no conviction recorded” notation in the sentencing language. Out of an over-abundance of caution, I will not have regard to those first two convictions because of these respective notations in the sentencing language.
That leaves a criminal history involving:
·the commission of some 78 offences;
·14 separate sentencing episodes at (1) the Brisbane and Beenleigh Magistrates Court; and (2) the Brisbane Supreme Court.
·an offending period running (on the basis of applicable sentencing dates) from October 2013 to August 2023, a period of some 10 years;
·offending in the realms of:
oproperty offences;
oillicit drug offending (incl. possession of utensils, possession (of illicit drugs) simpliciter and trafficking);
opossessing anything used in the commission of a crime;
obreaches of extant orders (including bail);
oweapons offences;
ofailure to follow a lawful direction (to stop his vehicle);
ounlawful use of a motor vehicle;
opossession of unauthorised and prohibited explosives;
ofraud and dishonesty offences;
ounauthorised dealing with shop goods;
opossession of counterfeit money;
oobstructing Police officer.
In terms of sentencing episodes that dealt with the Applicant’s offending, there are, as I mentioned earlier, 14 that I will take into account. The offending that I take into account for present purposes attracted 16 years and 8 months of head custodial time and approximately $1,300 in fines.
Paragraph 8.1.1(1)(a)
The chapeau to this paragraph refers to offending that is viewed very seriously by the Australian Government and the Australian community. While the Applicant’s offending might not, at first blush, fall within any of the three categories of offending contemplated by this paragraph, the chapeau to this paragraph does not limit the range of conduct that may be found to be very serious. This Applicant has a conviction for trafficking in dangerous drugs which, to my mind, should now be found to be very serious. Simultaneous with his conviction for trafficking, he was also convicted for possess dangerous drug specified in Schedule1 or 2, two counts of possessing dangerous drugs Schedule 1 drug quantity of or exceeding Schedule 3 but less than Schedule 4 and a further count of possessing dangerous drugs.
The details of this latter charge involved the Applicant being found in possession of testosterone, amphetamines and methamphetamine. I am comfortably satisfied that this level of illicit drug offending is within the range of conduct that should now be found to very serious for present purposes.
Paragraph 8.1.1(1)(b)
The chapeau to this paragraph stipulates four modalities of illegal conduct that is considered serious by the Australian Government and the Australian community. I am satisfied the Applicant has not caused another person to enter into a forced marriage nor has he been a party to such a marriage.[8] Similarly, I am not able to glean from his criminal record any conduct that forms the basis for a finding that he does not pass the character test that is dependent upon my opinion. But that is not the end of the inquiry for the purposes of this paragraph.
[8] Paragraph 8.1.1(1)(b)(i) of the Direction.
The Applicant has committed crimes against government representatives or officials (i.e the Police) as a result of his respective convictions for fail to stop vehicle (x6); fail to comply with requirement to stop vehicle (x1); contravene direction or requirement (x1) and obstruct police officer (x1). This conduct falls squarely within paragraph 8.1.1(1)(b)(ii) and is conduct that can be found to be at least “serious” for present purposes. Similarly, the Applicant has been convicted on two counts of possessing dangerous drugs comprising methamphetamine and Gamma Hydroxybutyric Acid during his time in immigration detention. This conduct is regarded as “serious” by paragraph 8.1.1(1)(b)(iv) of the Direction.
Paragraph 8.1.1(1)(c)
None of the Applicant’s sentences are precluded from consideration for the purposes of this paragraph. As mentioned earlier, while he may have received non-custodial sentences in the forms of fines and good behaviour recognizances, he has nevertheless cumulatively received some 16 years and eight months of head custodial time across the 13 year span of his offending. This is a significant cumulative period of custodial time and is surely indictive of the very serious nature of his conduct. As I have said elsewhere, sentences involving the imposition of terms of imprisonment are viewed as a last resort in the hierarchy of sentencing options available to a judicial officer. These are significant sentences and most certainly speak to the very serious nature of the totality of this Applicant’s offending in this country.[9]
[9] Pavey v Minister for Home Affairs [2019] AATA 4198 at [44]. See also PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
I am comfortably satisfied that the sentences imposed by the Courts for this Applicant’s crimes are a strong indicator of the very serious nature of his unlawful conduct in this country.
Paragraph 8.1.1(1)(d)
I have searched the material before the Tribunal and to the best of my understanding of it, there is no reference to victim impact statement (or similar document) in which a victim recounts the impact of the Applicant’s offending on that victim. This paragraph can be put to one side and rendered neutral for present purposes.
Paragraph 8.1.1(1)(e)
This Applicant has committed something in the order of 78 offences across barely a 13 year offending period. This is offending at the rate of six convictions for each year of the criminal history. As such, it is plainly frequent offending. Does it betray any trend of increasing seriousness? On one view, one could say (and find) that the offending has been serious from its outset. On another view, it may be found there is a trend of increasing seriousness. This is because when one looks at the offending that lead to this second cancellation giving rise to the decision under review, some 14 separate acts of “supply” of drugs were identified. However, the important point is that this offending was found to have been aggravated as a result of the Applicant’s offence of ‘possession of dangerous drug’ having been committed while he was on bail and that he subsequently committed another ‘possession of dangerous drug’ offence after having spent time in custody for a conviction alleging precisely the same conduct. This circumstance of aggravation does speak to the Applicant’s conduct displaying a trend of increasing seriousness.
I am comfortably satisfied that the frequency of this Applicant’s offending together with its demonstrated trend of increasing seriousness are elements that strongly point to the very serious nature of the totality of his unlawful conduct in this country.
Paragraph 8.1.1(1)(f)
There are at least three cumulative effects discernible from the Applicant’s repeated offending. First, the Applicant has been involved in the unlawful distribution of illicit drugs in our community. There can be no question that such dissemination adversely impacts users of those substances, their families as well as the community’s healthcare resources in dealing with the impact of those substances on the physical and mental wellbeing of others. Second, despite the best efforts of judicial sentencing officers, it is plain that this Applicant has experienced little or no deterrent effect from the regime of sentences that have been progressively imposed on him. His first 21 convictions were not punished by custodial time. He learnt nothing from this and proceeded to commit about another 55 offences that were punished by 16 years and 8 months of cumulative head custodial time.
Third, the Applicant has failed to develop any measure of respect for this country’s criminal laws or the authority represented by its law enforcement officers or the authority represented by lawfully made instruments such as bail which compel him to do or refrain from doing something. He will not be now heard to say that illicit drugs so distorted his moral compass such as to deprive him of any capacity to understand right from wrong. The offences for which he cumulatively received 16 years and eight months of head custodial time were committed and convicted during a span of time when the Applicant was aged 25 years and into his early 30’s. He was old enough to know, or ought reasonably to have known, that his conduct was seriously unlawful and otherwise unacceptable to the Australian community.
Fourth, there is surely no cavilling with the finding that this Applicant’s appalling history of criminal offending in this country has well and truly consumed more than its fair share of the community’s policing, judicial sentencing and custodial resources. There is no other way to interpret the commission of some 78 offences requiring him to appear before a sentencing Court on at least one occasion for each year of the offending history. Likewise, for one offender to commit an average of six offences per year is offending that unduly consumes the community’s policing resources.
I am easily satisfied that the abovementioned four cumulative effects of the Applicant’s repeated offending most certainly now speak to the very serious nature of the totality of his unlawful conduct in this country.
Paragraph 8.1.1(1)(g)
I have searched the material before the Tribunal and to the best of my understanding of it, there is no reference to the Applicant providing false or misleading information to the Respondent’s Department by not disclosing his prior criminal offending. Such non-disclosure usually results from a failure of a non-citizen to disclose their prior Australian criminal history upon any return or re-entry into this country. As noted earlier, this Applicant has never left Australia since initially arriving here in November 2002. He has therefore never been required to complete any incoming passenger card (or equivalent). This paragraph can be put to one side and rendered neutral for present purposes.
Paragraph 8.1.1(1)(h)
As mentioned earlier, the decision under review for present purposes derives from a second mandatory cancellation of the Applicant’s visa. When his visa was restored to him following the first cancellation, the letter from the Respondent’s Department (dated 26 March 2020) notifying him of revocation of the first mandatory cancellation gave him this warning: “Warning: if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds.”[10] [Emphasis in original]. There can be no question that the Applicant received this letter because he signed an acknowledgement of receipt of it.[11]
[10] R1, p 149.
[11] R1, p 151.
Following receipt of this warning, the Applicant returned to his previous pattern of offending. He committed at least 13 additional offences that attracted some 13 months of cumulative head custodial time. There can be no other finding than that he has re-offended since being formally warned, in writing, about the consequences of further offending on his visa status to remain here. This is surely indicative of the very serious nature of the Applicant’s pattern of offending in this country.
Paragraph 8.1.1(1)(i)
The Applicant first came here in November 2011 when he was 11 years of age. There is no record of him committing any offence in Romania (or elsewhere) as a juvenile. Even if there was, I would exercise caution about whether any offending as a juvenile could be taken into account for present purposes. This paragraph should be put to one side and rendered neutral.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence. The relevant paragraphs in paragraph 8.1.1(1) informing my assessment of the Applicant’s offending now safely and cumulatively lead me to the conclusion (and finding) that the totality of his unlawful conduct in this country can be readily characterised as ‘very serious’. I so find.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
There is a ready concession in the Applicant’s SFIC such that ‘…should the Applicant re-offend in a similar manner in future, the harm to Australia [sic] community could be deemed as serious given the nature of his past offending.’[12] A broadly parallel submission is contained in the Respondent’s SFIC which says that ‘…any re-offending would expose the Australian community to significant physical, psychological and financial harm.’[13] I am in broad agreement with the general tenor of these submissions.
[12] A1, p 6, [26].
[13] R2, p 6, [30].
As I have earlier identified, this Applicant has offended in a number of different realms. Were he to repeat his pattern of offending involving the unlawful dissemination of illicit drugs in our community, palpable physical and psychological harm would befall both end-users of these substances and those around them upon whom care and rehabilitation of those users inevitably devolves. Were he to again commit his property offences, materially measurable loss would be occasioned upon the lawful owners of that property. Any repetition of any aspect of his offending would again unduly consume the community’s Policing/law enforcement, judicial sentencing and custodial resources.
I will therefore find that the nature of harm resulting from this Applicant’s commission of further offending of the type he has committed thus far would result in (1) measurably material financial harm and loss; (2) physical, psychological and potentially catastrophic harm upon users of illicit substances he disseminates into the community; and (3) the undue consumption of the community’s Policing, judicial sentencing and custodial resources. To this finding, I will add that the harm resulting from any re-commission of the Applicant’s past conduct would be so serious that any such risk of re-commission should now be found to be unacceptable.[14]
The likelihood of the non-citizen engaging in further criminal or other serious conduct
[14] Pursuant to Paragraph 8.1.2(1) of the Direction.
The Applicant’s contentions
The Applicant’s SFIC contains a concession that while the Applicant’s offending “…..has escalated in severity over time, including the offence that lead to cancellation of his visa…..”[15]this escalation should be contextualised on two grounds: (1) by having regard to the “Applicant’s personal; circumstances”; and (2) by having regard to “his ongoing efforts to rehabilitate”. [16]First, the Applicant’s SFIC references those personal circumstances in the findings of Cassandra Tuckey[17] whose two reports are respectively dated 25 August 2023[18] and 10 November 2023.[19] The Applicant’s refers to and relies on Ms Tuckey’s findings about “….the Applicant’s extensive health challenges, including PTSD, grief, moderate to severe depression, chronic anxiety disorder, and stress….”[20]
[15] A1, p6, [27].
[16] A1, p6, [27].
[17] Criminologist and Senior Psychologist.
[18] R1, 98-99.
[19] R1, 100-107.
[20] A1, p6, [28].
The Applicant’s SFIC goes on to refer and rely on Ms Tuckey’s findings that the Applicant’s mental health issues “…….are attributed to a history of significant trauma, including a dysfunctional childhood, where the Applicant was placed in an orphanage in Romania for six years. Additionally, the Applicant endured sexual abuse in Australia, then dealt with the tragic murder of his sister, and faced complex family dynamics, including a partner with her own mental difficulties.”[21] These are propounded as the dispositive factors behind the Applicant’s offending history because it is said they have had “…..a profound and lasting effect on his well-being, significantly influencing his past behaviour and contributing to his involvement in criminal conduct.”[22]
[21] A1, p6, [28].
[22] A1, p6, [28].
Second, in terms of rehabilitation, the Applicant’s SFIC refers to and relies on the Applicant’s “……significant efforts towards rehabilitation and……post-release plans to support his ongoing progress.”[23] Reference is made in the SFIC to five counselling sessions attended by the Applicant between June 2022 and May 2023. During his time in immigration detention, it is said the Applicant completed a range of courses offered to him via IHMS[24] and that he proposes to engage with a Senior Mental Health Social Worker (Ms Cherelle Evans from Centacare) in the event of a return to the community.
[23] A1, p7, [30].
[24] International Health and Medical Services.
The Applicant claims to be remorseful and to have developed a level of insight into his past conduct. He describes his conduct as “….poor to say the least. …”[25] He purports to express his remorse to both his own family and the Australian community more generally. As best as I understood the Applicant’s SFIC, his position on recidivist risk seems to be that the collective elements of (1) his diagnosed mental health symptoms; (2) his past and ongoing commitment to rehabilitation; and (3) his claimed remorse about and insight into his offending, should lead this Tribunal to find that he has identified the predispositive factors behind his past offending, that those factors have been and will remain under remedial management and control so as to now “…..suggest a reduced likelihood of future criminal behaviour, as the Applicant is focused on positive reintegration into society.”[26]
[25] A1, p7, [34].
[26] A1, p8, [36].
The Applicant’s contentions
In his recent statement, the Applicant refers to priorities and protective factors he says will minimize his risk of re-offending. In terms of a first protective factor, he claims to found support and solace in religion. He says reading the Bible has been transformative for him and that “Now, my uncle and I do Bible studies every night, and it’s been a source of strength for me.”[27] A second protective factor he propounds is put in these terms:
‘In the longer term, I have a clear financial plan. I want to get my ABN, regain my driver’s license, and work toward buying property. I’ve done a lot of research on this. My goal is to buy a house, rent it out, and use the equity to purchase a second property. Over time, I’d like to grow this into a larger portfolio, working with brokers and developers to renovate and sell property while paying off the banks.[28]
[27] A2, p12, [64].
[28] A2, p12, [66].
His third protective factor is to be found in what he describes as his “ultimate goal” of re-establishing a parental presence in the lives of his children. He talks about wanting to “….invest time in my kids’ lives, help them succeed in school, and make sure they feel loved and valued.[29] An ancillary part of this factor is said to involve him having “….thought about settling down with Chanel, building a stable life together, and creating a home where our family can thrive.”[30]
[29] A2, p12, [67].
[30] A2, p12, [67].
His primary focus upon a return to the community is, however, said to be rehabilitation. He says: ‘If I’m released, my first priority is rehabilitation. That has to come first. I know I need to enrol in a structured program, see psychologists and counsellors, and take the necessary steps to maintain my recovery. After that, my plan is to work with my uncle, who has contracts lined up, so I can start earning an income.’[31]
[31] A2, p12, [65].
Clinical Opinion
The material contains two reports from the abovementioned Ms Cassandra Tuckey, Criminologist and Senior Psychologist. The first of those reports is dated 25 August 2023. Ms Tuckey opines that the Applicant ‘…is currently suffering from moderate-severe depression, PTSD, moderate-severe anxiety and moderate-severe stress,…’[32] [Emphasis in original]. This first report of Ms Tuckey does not contain an assessment of the Applicant’s level of recidivist risk other than to say ‘It is my professional opinion that Daniel is a good candidate for a visa.’[33]
[32] R1, p97.
[33] R1, p98.
Ms Tuckey’s second report is dated 10 November 2023. She took various histories from the Applicant. With specific reference to his criminal history, her report notes ‘Daniel stated that he does have some criminal history. He reported that he was guilty of some driving offences, and that he has previously been incarcerated.’[34] The significant difficulty with this observation is that by the time of this report, the Applicant had committed almost 80 offences and had appeared before sentencing Courts on at least 14 occasions at which his offending was punished by the imposition of cumulative head custodial time of 16 years and eight months.
[34] R1, p102.
Ms Tuckey conducted certain testing on the Applicant and in terms of a personality test outcome, she thought the Applicant ‘…has the personality structure of a “neurotic extrovert”.’[35] She applied the Beck Depression Inventory to ascertain the extent of the Applicant’s depression symptomatology. She concluded that ‘On this test, his score indicated that he has moderate-severe depression.’[36] [Emphasis in original]. She also applied the Beck Anxiety Inventory to ascertain the Applicant’s anxiety symptomatology. Her conclusion here was that ‘On this test, his score indicated that he has moderate-severe anxiety.’[37] [Emphasis in original]. Ms Tuckey also applied the DASS[38] test to ascertain the Applicant’s symptomatology in relation to depression, anxiety and stress. She concluded that ‘On this test, his scores indicated that he has depression, anxiety and stress.’[39] [Emphasis in original].
[35] R1, p102.
[36] R1, p103.
[37] R1, p103.
[38] Depression, Anxiety and Stress Scale.
[39] R1, p103.
In terms of a concluded diagnosis, Ms Tuckey opined the Applicant ‘…is suffering from PTSD, grief, moderate-severe depression, moderate-severe anxiety in the form of a Chronic Anxiety Disorder, moderate-severe stress & sensory deprivation from being detained in immigration detention.’[40] [Emphasis in original].
[40] R1, p103.
Towards the end of her report, Ms Tuckey expresses two professional opinions which she put as follows: ‘…if Daniel FARCAS continues with his current treatment plan, then prognosis for future rehabilitation will be good’[41] and ‘…some of Daniel’s behaviour stems from his past exposure to abuse, and these behaviours can be improved and modified with medication and regular Psychological treatment.’[42]
[41] R1, p106.
[42] R1, p106.
In terms of an opinion about the Applicant’s recidivist risk, Ms Tuckey arrived at this finding: ‘It is my professional opinion that Daniel FARCAS is at minimal risk of re-offending, & he poses no threat to society. It is recommended that he not be removed from Australia, as doing so would have such a detrimental impact on him,…’[43]
[43] R1, p107.
Sentencing remarks
To my mind, there some telling findings made by the learned Supreme Court sentencing Judge[44] who dealt with the Applicant at the sentencing Hearing that occurred on 22 November 2019 at the Brisbane Supreme Court. The Applicant came before the Brisbane Supreme Court for sentencing on the following counts[45]:
·receiving tainted property[46];
·unlawful possession of weapons[47] (x2);
·possessing dangerous drugs, schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4[48] (x2);
·possessing anything for use in the commission of crime[49] (x2);
·possess dangerous drug specified in schedule 1 or 2[50]; and
·trafficking in dangerous drugs[51];
[44] His Honour Judge Boddice.
[45] Note to reader: Judge Boddice also dealt with and additional eight summary matters pursuant to s 651 of the Criminal Code Act 1899 (Qld). On each of these summary offences, the Applicant was convicted, convictions were recorded but the Applicant was not further punished beyond the sentences he received for the indictable offences dealt with by the Court.
[46] Section 433(1) Criminal Code Act 1899 (Qld).
[47] Section 50(1)(c)(i) Weapons Act 1990 (Qld).
[48] Sections 9A and 9B Drugs Misuse Act 1986 (Qld).
[49] Section 10(1)(b) Drugs Misuse Act 1986 (Qld).
[50] Section 9(1)(d) Drugs Misuse Act 1986 (Qld).
[51] Section 5 Drugs Misuse Act 1986 (Qld).
For this offending, the learned sentencing Judge imposed cumulative head custodial terms amounting to 11 years and nine months. In his sentencing remarks, the learned sentencing Judge had regard to the Applicant’s claimed factor of his sister’s death as an explanation for his unlawful conduct. This factor received short shrift from the learned sentencing Judge who noted:
“In coming to an appropriate penalty, I have regard to the serious aspects of your offending as set out in the various agreed statements of fact. I have regard to your personal circumstances.
Some of the matters that you seek to rely upon as an explanation for your behaviour, I do not find, are supported by that material.
For example, I do not doubt that the tragic death of your sister had an enormous impact on you, but to suggest that that explains your offending is to disregard completely your criminal history prior to that date.”[52]
[52] R1, p 54, lines 40-49.
Similarly, the learned sentencing Judge rejected the Applicant’s claim of his family purportedly acting as a protective factor against future offending. His Honour said: ‘Similarly, there are other matters which are relied upon by you, such [as] your concern as to the effect on your family in circumstances where you had a complete disregard for that at the time you were committing these offences.’[53]
[53] R1, p 55, lines 1-3.
Findings about recidivist risk
Any suggestion of the Applicant having maintained a pattern of abstinence from illicit drug and alcohol consumption for anything like the two years he has previously propounded,[54] should be either received with significant caution or otherwise rejected. It is plain from the evidence that he was convicted for possessing dangerous drugs while in immigration detention. Notably, he entered his own plea of guilty to this offending. The further reason of his claim to remain drug-free now if returned to the community is that his capacity to do so remains to be tested in the significantly less regulated community environment where illicit drugs will be significantly more freely available to him.
[54] See Applicant’s statement, R1, p 95.
For the same reasons referred to by the learned sentencing Judge who dealt with the Applicant on 22 November 2019, I will reject the claimed explanatory factor of his sister’s tragic death behind his offending. He was obviously committing crimes before her death. Likewise, this Tribunal should be cautious about accepting his three now-claimed protective elements around his future recidivist risk. The claim about experiencing some kind of religious epiphany should be received with considerable caution because it is the evidence of the Applicant and him alone. He talks about studying the Bible with his Uncle but there is nothing corroborative from the Uncle in this regard or any other religious-type witness who can speak to this claim.
The Applicant’s intention to become a property developer and speculator are, although well-intended, are largely expressions of speculative intent. There is no explanation, for example, about where the capital will come from for him to purchase an initial property. There is no guarantee of this first property increasing in value to the extent he will then be able to acquire a second and subsequent properties. It is difficult to see how this property development and speculation objective will be reached from only the Applicant’s earnings as an employed tiling labourer in his Uncle’s tiling business.
The Applicant’s intention to re-establish himself as a parental figure in the lives of relevant children in his life is, again, a well intentioned objective but one which requires the intervention of external decision makers to actualise. The relevant children have been placed in the care of others. They do not reside with the Applicant’s domestic partner, Chanel. The Applicant will not be entitled to, as it were, automatically resume some kind of parental role in the lives of these children. The stark reality for both the Applicant and Chanel is that they are some distance away from being in any position to call themselves the day-to-day carers and parental providers for these three children.
The Applicant claims to have insight into what he has done wrong and the extent to which he has breached the criminal law of this country and the extent to which, in turn, this conduct has now placed his visa status at existential risk. He claims to understand the necessity to remain connected to some sort of rehabilitative pattern if now returned to the community. There is some tentative indication that he will do so with entities such as Centacare but it is not clear exactly what that sort of treatment he will receive and how it will alleviate the factors that have pre-disposed him to very seriously offend. His latest statement talks about him knowing ‘…I need to enrol in a structured program, see psychologists and counsellors, and take the necessary steps to maintain recovery.’ On any reasonable view, these are early and preliminary steps and, more likely, they are steps not yet fully defined or otherwise capable of immediate implementation. We do not know the resilience of those programs in terms of ensuring the Applicant remains on a rehabilitative path and, ultimately any extent to which they may favourably impact his recidivist risk.
The two reports of Ms Tuckey should be viewed cautiously and weighed sparingly. In the first of her reports, there is no assessment of the Applicant’s recidivist risk other than for her to say the Applicant ‘…is a good candidate for a visa.’ The second of them purports to define the Applicant’s recidivist risk on the basis that he is ‘…at minimal risk of re-offending, & he poses no threat to society.’ To my mind, this is a somewhat bold finding in circumstances where (1) the Applicant’s rehabilitative journey is barely at its formative stage; (2) he gave her a patently untruthful and incorrect summary of his criminal history; and (3) he told her he had not consumed any illicit drugs since 2022, yet he was convicted for possession of illicit drugs while in immigration detention. More significantly, Ms Tuckey was not called to give oral evidence which denied the Respondent (and the Tribunal) the opportunity to test her evidence.
Assessment of recidivist risk
I will cautiously find that the Applicant has understood that difficulties with illicit drugs have been at the front and centre of his past offending. I will also cautiously find that he now understands he needs clinical treatment and help for his difficulties with illicit drugs and, more broadly, for the psychopathological symptoms identified by Ms Tuckey. As against that, the protective factors of (1) his family/parental responsibilities; (2) his proposed property development and speculation venture; and (3) his now-claimed religious epiphany, do not displace the seriously incomplete nature of his rehabilitation which, in turn, does not facilitate a finding that he now represents a low recidivist risk.
I will find that this Applicant represents a moderate risk of resuming his pattern of very serious unlawful conduct. The current state of the evidence does not allow the introduction of the word ‘low’ before the word ‘moderate’ and also does not allow any finding of him representing a low recidivist risk. Were he to resume his pattern of offending, the impact on any victim would be so serious that any such risk should now be found to be unacceptable.[55] I reach this “moderate” recidivist risk finding with the Direction’s dictum that the safety of the Australian community is “...the highest priority of the Australian Government”[56] at the forefront of my mind.
[55] Pursuant to Paragraph 8.1.2 of the Direction.
[56] Paragraph 8.1(1) of the Direction. See also paragraph 5.2(2) of the Direction.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a
non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.Conclusion of Primary Consideration 1:
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the totality of the Applicant’s conduct to date has been very serious;
(b)I have found that the nature of harm resulting from this Applicant’s commission of further offending of the type that he has committed thus far would result in (1) measurably material financial harm and loss; (2) physical, psychological and potentially catastrophic harm upon users of illicit substances he disseminates into the community; and (3) the undue consumption of the community’s Policing, judicial sentencing and custodial resources. To this finding, I will add that the harm resulting from any re-commission of the Applicant’s past conduct would be so serious that any such risk of re-commission should now be found to be unacceptable.[57]
(c)I have assessed the Applicant’s recidivist risk as “moderate”. In reaching this finding about recidivist risk, I have kept the Direction’s dictum that the safety of the Australian community is “...the highest priority of the Australian community” at the forefront of my mind.
[57] Pursuant to Paragraph 8.1.2 of the Direction.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a very heavy level of weight in favour of this Tribunal affirming the decision under review.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
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 non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
A document in the material
Earlier in these Reasons, I referred to what appeared to be a consensus between the parties that this Primary Consideration did not apply to the instant facts. I took this impression from their mutual allocation of neutral weight to this Primary Consideration 2 in their respective SFICs. It would appear that after they drafted and then filed and served their respective SFICs, certain additional material was received into this proceeding, presumably as a result of a summons issued by the Respondent’s representatives. That material appears at Exhibit R4 to these proceedings which comprises the Respondent’s further supplementary documents. Within this bundle, there appears a safety ‘assessment and outcome’ issued by the Department of Child Safety, Seniors and Disability Services.[58]
[58] R4, pp 1-13.
In this document, there are the following findings/observations:
ASSESSMENT OF HARM AND RISK OF HARM
What are we worried about?
Harm:
…
It is my assessment that [Child N], [Child R], and [Child D] are at risk of experiencing physical and emotional harm as a result of neglect, emotional abuse and physical abuse by Chanel Spencer and Daniel Farcas.
…
There is no recorded domestic violence between Chanel and Daniel, however [name of person redacted] report that Daniel is largely controlling of Chanel, watching her movements, taking her car and controlling her social relationships. Chanel has alluded to this on one occasion, however has not provided any substantial information to suggest Daniel is perpetrating domestic violence towards her.[59]
[59] R4, pp 6-7.
As noted earlier, this is an expedited matter and during this matter’s interlocutory phase, the parties do not appear to have had an opportunity to receive this additional material in sufficient time for them formulate a written position that could have been recorded in, for example, further or amended SFIC documents. The parties were left with no alternative but to address this issue from the bar table at the Hearing.
It was contended on behalf of the Respondent that the described controlling conduct in the above document fell within the definitional auspices of paragraph 4 of the Direction relating to family violence. The contention went no higher than these few lines in this single document might suggest the Applicant had been involved in the perpetration of family violence. There was an accompanying concession from the Respondent that there was a total absence of any police record of family violence in the material. Be that as it may, the Respondent’s representative urged the Tribunal to take these few words into account, to apply them to paragraph 8.2 of the Direction and to weigh this Primary Consideration accordingly against the Applicant.
It was contended on behalf of the Applicant that while the presence of the document in the material before the Tribunal could not be denied, the Tribunal should afford little or no weight to it. Support for this contention was sought from the four realities of (1) there being no other independent and authoritative record of this alleged conduct by the Applicant in the material either from the Police or any other such body; (2) Ms Spencer’s evidence to the instant Hearing was clearly to the effect that no matter what this report might say, the Applicant had never perpetrated any conduct against her which could now be construed as family violence which is consistent with the report’s finding that ‘…Chanel…has not provided any substantial information to suggest Daniel is perpetrating domestic violence towards her.’ ; (3) both the Applicant and Ms Spencer were not either direct or indirect authors of this document, it being the construct of a distantly removed third party; and (4) this document/report dates from April 2022 and is now over three years old. There is no subsequent document indicating the relevant Department’s attitude or findings about this slight reference to allegedly controlling conduct some three years ago.
In these circumstances, I will find that this single document which contains barely five lines obliquely referring to domestic violence which is not suggested or endorsed by the alleged victim, does not rise to the necessary definition appearing in paragraph 8.2(2) of the Direction. To be clear, the alleged victim told both the relevant Department that authored this now over-three year old report as well as the instant Hearing, that the Applicant has never perpetrated family violence against her. The further point is this: the author of this report was not called to give evidence and the Applicant was denied the opportunity of testing that author’s evidence during cross-examination.
The safest and procedurally fairest course is to put this Primary Consideration 2 to one side and render it neutral for present purposes.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Text of the Direction
Paragraph 8.3(1) of the Direction states:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
The subsequent paragraph 8.3(2) also stipulates that in the assessment of any other ties that a non-citizen may have in Australia, the decision-maker must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant’s Immediate Family Members in Australia (8.3(1) of the Direction)
The Applicant’s immediate family in Australia comprises his mother, sister and two brothers. The evidence given by the Applicant and Ms Chanel Spencer at the instant Hearing was strongly suggestive of a reality that he and she will resume their domestic relationship were he successful in the instant proceeding. As mentioned earlier, the Applicant said in his most recent statement that he has:
“…..also thought about settling down with Chanel, building a life together, and creating a home where our family can thrive.” The Applicant’s evidence dovetails neatly with that of Ms Spencer who notes: I am aware that Daniel’s current situation is complicated, and his legal challenges are significant. However, I respectfully ask that you consider not only the legal aspects but also the profound impact that his absence would have on his family. Daniel has always put his family first and has been an unwavering source of support. His presence is essential to our family’s well-being, and his absence would have devastating emotional and practical consequences.”[60]
[60] A2, p 14.
In terms of recommencing their domestic relationship, Ms Spencer understood that both hers and the Applicant’s best prospects of convincing the relevant Department to return the relevant children to them would be if they could demonstrate a capacity to jointly run a household that could safely receive the children with him and her as their primary parental carers. This reality gives weight to a finding that Ms Spencer is an immediate family member of the Applicant who would be significantly impacted by his removal to Romania not just in a personal sense but in terms of her prospects of resuming a primary parental role for the three relevant children.
Ms Victoria Duga is the Applicant’s mother who provided both written and oral evidence to the instant Hearing. She relies on him for assistance with meeting the challenges of her ill-health and advancing years. She is not assisted by her other two sons and without the Applicant, she says she “…..struggle to cope….”[61]She describes the Applicant as “….my rock, and I cannot express enough how much I depend on him.”[62] She implores the Tribunal to “…..take into account the personal and emotional impact that this situation has on me and our family. The separation of Daniel from me would cause irreparable harm, not only to my well-being but also to the emotional harm and mental health of our family.”[63]
[61] A2, p 16.
[62] A2, p 16.
[63] A2, p 16.
I am satisfied the Applicant has the abovementioned immediate family members[64] (including Ms Spencer) in Australia and that they would be adversely impacted by his permanent removal from Australia. I will find that these ties militate in favour of the allocation of a heavy level of weight in favour of the Applicant pursuant to this Primary Consideration 3. This finding is predicated on the limiting proviso contained in paragraph 8.3(1) of the Direction that the people representing these ties are Australian citizens, Australian permanent residents and/or a people who have a right to remain here indefinitely.
The Applicant’s ties to other family members and social ties in Australia (8.3(2)(b)) of the Direction
[64] See [78] of these Reasons.
My findings about impediments are as follows:
·the Applicant’s age and state of physical health are not impediments to him returning to Romania. The relative difference between publicly available mental healthcare between Australia and Romania does constitute a genuine, but not insurmountable, impediment to him returning to Romania;
·there are no substantial language or cultural barriers impeding the Applicant’s return and resettlement in Romania;
·any lack of economic support will, in the short to medium term, impede his return and resettlement in Romania but not to any insurmountable extent;
·any lack of medical support is a genuine, but not insurmountable, impediment to the Applicant’s return and resettlement in Romania;
·the relative lack of social support, at least in the short to medium term, will impede the Applicant’s return and resettlement in Romania but not to an insurmountable extent.
Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) warrants a moderately strong level of weight in favour of revocation.
Other Consideration (c): impact on Australian business interests
Earlier in these Reasons,[105] I noted the respective positions of the parties that this Other Consideration (c) is not relevant to the instant determination. I concur with that mutually-held view and will therefore put it to one side and allocate neutral weight to it.
[105] See [12] of these Reasons.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of moderate weight in favour of revocation;
(b)extent of impediments if removed: is of moderately strong weight in favour of revocation; and
(c)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.[106]
[106] See [7] of these Reasons.
In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: is of a very heavy level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: is of neutral weight;
·Primary Consideration 3: is of a heavy level of weight in favour of setting aside the decision under review;
·Primary Consideration 4: is of a moderate level of weight in favour of setting aside the decision under review;
·Primary Consideration 5: is of a very heavy level of weight in favour of affirming the Decision Under Review.
I have earlier outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 3 and 4 together with Other Considerations (a) and (b) are comprehensively and dispositively outweighed by the combined respective weights I have allocated to Primary Considerations 1 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is not another reason to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 7 August 2024 to not revoke the mandatory cancellation of the Applicant’s Class AS Subclass 801 Spouse visa.
145. I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis
..............[SGD]..............
Associate
Dated: 25 June 2025.
Date of Hearing: 5 and 6 June 2025 Solicitor for the Applicant: Ms Marta Mamarot (Principal Solicitor)
South-West Legal & Migration Services
Solicitor for the Respondent: Ms Miriam Williams (Associate)
Minter Ellison
ANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
RESPONDENT MATERIAL
R1
Section 501G Documents
15 October 2024
15 October 2024
R2
Respondent’s Statement of Facts, Issues and Contentions
23 Sep 2024
23 Sep 2024
R3
Respondent’s Supplementary Documents
23 September 2024
23 September 2024
R4
Respondent’s Further Supplementary Documents
21 February 2025
21 February 2025
APPLICANT MATERIAL
A1
Applicant’s Statement of Facts, Issues and Contentions
29 December 2024
29 December 2024
A2
Applicant’s Tender bundle
6 January 2025
6 January 2025
0
2
0