Farcas and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 5107

Farcas and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 5107 (13 December 2021)
Division:GENERAL DIVISION
File Number: 2021/6960
Re:Pintea Ciprian Farcas
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:13 December 2021
Place:Adelaide

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review dated 20 September 2021.
.....................[SGND]...........................
Senior Member B J Illingworth
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class AS Subclass 801 Spouse visa – where Applicant does not pass the character test – serious criminal record - whether “another reason” to revoke visa cancellation – Ministerial Direction 90 – Decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Appeals Tribunal Regulation 2015 (Cth)
Migration Act 1958 (Cth)
Cases
Beiruti and Commissioner of Taxation [2013] AATA 634.
FYBR v Minister for Home Affairs [2019] FCAFC 185
Miller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1623 (8 June 2021).
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member B J Illingworth
13 December 2021
JURISDICTIONAL ISSUE

The respondent has raised a preliminary argument that the Tribunal does not have jurisdiction to hear and decide the Application for Review, which application was filed using the wrong form and did not contain a statement of reasons for the application, which was a mandatory requirement pursuant to s 29(1)(c) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
At the relevant time, Mr Pintea Ciprian Farcas (the applicant) was in immigration detention. He could not read or write English and was assisted in preparing the application. The application was filed on 28 September 2021 at 9.00am, 8 days from the receipt of the decision.
THE APPLICATION FORM USED BY THE APPLICANT
Section 7 of the Administrative Appeals Tribunal Regulation 2015 (AAT Regulation) provides that the President of the Tribunal may approve the forms to be used in the Administrative Appeals Tribunal (AAT) and across its various divisions.
The application form created by the applicant with the assistance of another and filed in the Tribunal was an application form headed “Application for review – Migration (For persons in immigration detention) (M2)” (M2 form) found on the Tribunal’s website.
Arguably, it is not immediately apparent to a person who does not read or write English, or who may be unfamiliar with the role and function of the Tribunal across its various Divisions, when navigating the website, to immediately understand, that an application for review of a section 501CA decision made under the Migration Act1958 (Migration Act), requires an application to be made to the AAT using the form for the General Division and not the Migration Review Division, which is what occurred in this matter. The error is easily understood, nonetheless, the form used is a valid AAT form.
Part A of the M2 form says that if a person is applying to review one of a number of listed Migration Act decisions, including the non-revocation of a visa cancellation under section 501CA of the Migration Act, “You may not be completing the correct form. Please contact us on 1800 228 333.” Other than providing a contact number, no further direction is given, and the author of the form is not referred to the correct General Division form or the webpage for further guidance. Given the application must be filed within 9 days of receipt of the decision, time was of the essence.
The General Division form and the M2 form share commonalities. However, unlike the M2 form, the General Division form requires the author to complete a section headed “Why do you claim the decision is wrong?” and then says that, before answering this question, the author should read the “Guide for applying for review” which is attached to the form. The Guide under heading ‘Reasons you are making an application’ informs the reader to briefly state the reasons for the review and gives the example, “you may think the decision is wrong and a different decision should be made”. No similar requirement is contained in the M2 form.
Respondent’s Submissions
The respondent in summary makes the following submissions:
(a)the application was not valid and the Tribunal does not have jurisdiction, in that there was no statement of reasons, contrary to the mandatory requirement in s 29(1)(c) of the AAT Act. Section 29(1) sets out what was is required of applications, using the plain meaning of words, and it is not for a decision maker to undo the words of Parliament. In Miller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[1] (Miller), the Tribunal considered that the use of the word ‘must’ indicates ‘mandatory’ intention, which is to be preferred to the view of Deputy President Forgie in Beiruti v Commissioner of Taxation[2] which considered that section 29(1) of the AAT Act was exhortatory rather than mandatory;
(b)Parliament clearly turned its mind to the context of this application due to s500(6B) of the Migration Act, which modifies the requirements for the making of the application. Parliament limited the timeframe to 9 days, removed s 29(1)(d) of the AAT Act and removed the ability to grant an extension of time. Parliament did not remove s 29(1)(c) of the AAT Act, notwithstanding that this may have potentially harsh consequences. The obligation to bring an application within the statutory timeframe is on the applicant. Whether or not the applicant would have been assisted by a translator in making the application is a matter for the applicant. The Tribunal’s response to receiving the application (which was to issue the s 29AB notice) does not weigh into whether there is a valid application made within time;
(c)the reference to providing further information within 14 days contained within the s29AB notice does not operate to extend time because the Migration Act provides a strict timeframe in terms of the time for which an applicant can seek a review of the decision. Notification of the Minister’s decision not to revoke the applicant’s visa cancellation was delivered via email to the applicant’s representative on 20 September 2021, triggering the 9-day time frame to make an application for review. This time frame ended on 29 September 2021 and no statement of reasons was received. It was maintained that while Parliament did not change the operation of s 29AB through the provisions of the Migration Act, that does not mean that Parliament contemplated that there could be a valid application, without a statement of reasons, that could be cured by a notice pursuant to section 29AB of the AAT Act;
(d)s 29AB of the AAT Act is premised on the existence of a statement of reasons under s 29(1)(c) of the AAT Act. The fundamental pre-condition for the operation of this provision was not met. The Tribunal in Miller[3] appears to accept that, if the applicant has not provided a statement of reasons with their application for review, that circumstance cannot be cured by a s 29AB notice requesting reasons within a certain time;
(e)it cannot be said that the applicant gave reasons orally within the 9-day timeframe, in the context of the applicant telephone call to the Tribunal on 29 September 2021, because (1) the Tribunal’s file note does not reflect the applicant actually providing oral reasons on 29 September 2021 and (2) section 29(1) of the AAT act implies that the reasons must be in writing; and
(f)the issue of jurisdiction is not answered by substantial compliance because (1) section 29(1) of the AAT Act is not concerned with a prescribed form and no form is prescribed by that legislation, (2) the use of the wrong form is not the concern, rather, it is the lack of an application that contains a statement of reasons for the application, and (3) there was no statement of reasons for the application, even applying the principles of substantial compliance.
[1] (Migration) [2021] AATA 1623 (8 June 2021).
[2] [2013] AATA 634.
[3] (Migration) [2021] AATA 1623 (8 June 2021) at [45].
Legislative framework
Relevantly s 29 of the AAT Act reads as follows:
(1) An application to the Tribunal for review of a decision:
(a)must be made:
(i)in writing; …
…
(b)must be accompanied by any prescribed fee; and
(c)…must contain a statement of the reasons for the application; …
Section 25(1) of the AAT Act says that an enactment may provide that an application may be made to the Tribunal for review of a decision. The Migration Act empowers the Tribunal to hear certain decisions, including a decision made under subsection 501CA(4) of the Migration Act not to revoke a decision to cancel a visa of a person in the immigration zone.
Section 25(3)(c) of the AAT Act provides that an enactment which empowers the Tribunal to hear a review of certain decisions may specify conditions upon which applications may be made to the Tribunal.
Section 25(6) of the AAT Act provides that an enactment may include provisions adding to, excluding or modifying the operation of, inter alia, s29 of the AAT Act which section deals with the manner in which applications for review are brought before the Tribunal, the prescribed time within which an application will be filed, and grants power to the Tribunal to extend the time within which to bring the application.
The Migration Act specifies conditions upon which applications may be made to the Tribunal and the provisions of s 29 of the AAT Act that do not apply to applications made under s501CA(4) of the Migration Act.
Section 500(6B) of the Migration Act provides that where a decision is made under subsection 501CA(4) of the Migration Act not to revoke a decision to cancel a visa of a person in the immigration zone, an application “must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision”.
Section 500(6B) also provides that “paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the AAT Act do not apply to the application” to review a decision under subsection 501CA(4). Consequently, the usual prescribed time for filing an application for review of 28 days, and the discretionary power of the Tribunal to grant an extension of time within which to bring the application for review, are removed for the purpose of the application.
Hence, the applicant had 9 days from the date of receipt of the decision within which to file the application for review, and the Tribunal has no discretion to extend the time within which to file the application.
In this matter, having been notified of the decision on 20 September 2021, it was a mandatory requirement that the applicant file the application for review on or before 29 September 2021, which application must include a statement of reasons for the application which is a mandatory obligation.
However, the Tribunal’s discretion to address a deficiency in the application filed by an applicant remains. Relevantly, s29AB of the AAT Act was not excluded from its operation by s500(6B) of the Migration Act. Section 29AB reads:
If the Tribunal considers that an applicant’s statement under paragraph 29(1)(c) does not clearly identify the respects in which the applicant believes that the decision is not the correct or preferable decision, the Tribunal may, by notice given to the applicant, request the applicant to amend the statement appropriately, within the period specified in the notice. [my emphasis]
Hence, the legislature has contemplated that there may be occasion where there is a deficiency in the material provided by an applicant, in respect of the statement of reasons under s29(1)(c) of the AAT Act, and provides a mechanism for the Tribunal to address the mischief in the operation of the Tribunal’s discretion. The use of the word ‘may’ in s29AB clearly contemplates that it is a matter for the Tribunal to decide whether to provide notice to an applicant. It is also relevant to note that s29AB does not specify the manner in which an applicant must comply with the notice. Further, Parliament empowered the Tribunal to specify a period of time within which the requested information is to be provided. So, for example, when a deficient application is filed on the 9^th day, Parliament must have contemplated that the Tribunal’s notice may specify a period of time, extending beyond the 9^th day, within which to remedy the mischief.
Factual History
Prior to the hearing, the Tribunal sent to the parties copies of documents including administrative records that were relevant to the challenge to the Tribunal’s jurisdiction. Those documents were received and marked Exhibit C. They identified the following sequence of events within the Tribunal, following receipt of the application for review at 9:00am on 28 September 2021:
(i)On 28 September 2021 at 10:27am, the Tribunal Registry sent to the respondent an email which advised that:
(a) The Tribunal had received an application for review of a decision in relation to the applicant, and provided his date of birth and file number;
(b) The application had been allocated to the General Division as it related to a decision not to revoke the applicant’s visa cancellation under ss501 or 501CA of the Migration Act; and
(c) The Registry was trying to determine the date the applicant received the decision and asked for a copy of the Department’s decision, any reviewable decision together with any material evidencing the applicant was given a copy of the decision.
(ii)On 28 September 2021 at 10:56am, the respondent sent the requested documents to the Tribunal Registry.
(iii)On 28 September 2021 at 12.00 noon, the Tribunal Registry sent to the respondent by email, a Notice of Application for Review of Decision, which, amongst other things, gave notice of the receipt of an application for review of a decision under s501CA of the Migration Act; advised that the matter will be listed for a Telephone Directions Hearing and Hearing on dates to be advised; and provided the Tribunal file number 2021/6960.
(iv)On 28 September 2021 at 12.07pm, the Tribunal Registry sent by email to the applicant a letter which I infer was a notice pursuant to s 29AB which, amongst other things said:
(i)The Tribunal acknowledged receipt of the application for review of the decision;
(ii)Under heading “More information required” the author wrote:
Before we can finish processing your application we need you to provide reasons for lodging your application. Your reasons do not have to be detailed, but you are required to give them under the AAT Act… Please contact us and give us this information.
Please write to us or ring us to give us this information within 14 days of the date of this letter.
(v)A file referral note was created which records information in relation to the matter including, amongst other things, the file number, that the decision type was a s501CA decision, the 84^th day for the decision was 13 December 2021, that the applicant applied on a Migration Review Decision Form and that he has not provided a statement of reasons under s29(1)(c) of the AAT Act, and that the Tribunal has asked the applicant to provide his reasons.
(vi)On 29 September 2021 the Tribunal records indicate that the applicant contacted the Tribunal to verbally provide the statement of reasons. Despite the notice to the applicant advising he could write to or ring the Tribunal to provide the details, the applicant was advised that the reasons could not be taken over the telephone and were required in writing. The Tribunal file records that the applicant advised he had someone assist with the application because he cannot read or write English. He was advised to speak with that person for further help to provide a response. Nonetheless, the Tribunal Officer noted that the applicant wished for a review of the decision “as they disagree with the outcome”. The Tribunal Officer advised this may not be sufficient information and the applicant was still to provide written details.
(vii)On 30 September 2021, the Tribunal received the following email:
Hi my name is Pintea Ciprian farcas. Im writing to tell you to please not send me to Romania. I have no one there. I have no friends or family there. All my friends and family are here in Australia. I have been here in Australia for 19 yrs. My family is here and i love them very much. And they are the only ones who love me. And my mum really needs me. She is not well and i need to be there for her. Also my giurlfriend is here and waiting for me. We have been engaged for 3 years and are to be marriied in December! So please im asking you to let me stay here in Australia because my whole world is here! Thankyou Ciprian Farcas
Hence, the applicant received the decision on 20 September 2021 and on 28 September 2021 (within the 9 days of receipt of the decision) he applied for review of that decision.
The Tribunal Registry immediately identified that the application was filed on the wrong form. The Tribunal Registry sent an email to the respondent on 28 September 2021, at 10:26am advising that the matter had been allocated to the General Division because the matter related to a decision not to revoke a visa cancellation under s501 or 501CA of the Migration Act and requested certain documents from the respondent.
The respondent provided the requested documents at 10:56am that day and at 12.00pm the Tribunal Registry sent a Notice of Application for Review of Decision to the respondent enclosing the application for review. The Tribunal Registry dealt with the matter as if the application was on the correct form, including the creation of a file with a file number and advising the respondent that the matter will be listed for a Telephone Directions Hearing and Hearing. No issue was taken by the respondent at that time with regards to the application form or any deficiency.
On 28 September 2021 at 12:07pm, the Tribunal Registry sent a notice pursuant to s29AB of the AAT Act to the applicant, requesting he provide within 14 days of the date of the notice, either in writing or by telephone, more information that was required, namely a statement of reasons for the application.
At or about 11:39am on 29 September 2021, being the 9^th day from receipt of the decision by the applicant, and in compliance with the s29AB notice, the applicant telephoned the Tribunal Registry to provide by telephone his statement of reasons and, albeit the Tribunal Officer requested the statement of reasons be provided in writing, noted on the Tribunal file record that the applicant wished to review the decision “as they disagreed with the outcome”.
There is nothing in the legislative scheme which prescribes the manner in which an applicant must provide the statement of reasons upon request, pursuant to a S29AB notice. By the notice, the applicant was given the option to do so in writing or by telephone. He did not read or write in English. He clearly provided an oral reason for making the application, namely, that he disagreed with the decision which he provided on the 9^th day post filing the application for review. When invited to put the reasons in writing with the assistance of another, the applicant provided an email dated 30 September 2021 at 12:36pm well within the 14 days provided in the notice, which provided a further statement of reasons.
Conclusion as to jurisdiction

The respondent argues that the Tribunal in Miller[4] appears to accept that, if the applicant has not provided a statement of reasons with their application for review, that circumstance cannot be cured by a s 29AB notice requesting reasons within a certain time. I respectfully reject that submission.
[4] At [45].
The Tribunal in Miller was there considering the same procedural issue, namely the filing of an applicant on the wrong form with no statement of reasons. Properly understood, the Tribunal in Miller put a general proposition and said[5]:
To construe the requirement to provide a statement of reasons as a mandatory requirement would lead to invalidity of this application due to a technicality… [which invalidity was not] capable of cure by the provisions of section 29AB of the AAT Act because such a course of action is rendered nugatory by section 500(6B) of the Migration Act.
This, the Tribunal observed, would mean an applicant could not have his application reviewed resulting in his reviewable decision being taken to be affirmed. The Tribunal answered that proposition and said[6]:
The Tribunal does not consider that this could have been the intention of Parliament. The Tribunal considers that the Applicant has placed before the Tribunal everything which the form provided required; whether another form should have been used is a matter which can be excused, on the basis of the reasoning in MZAIC.
[5] Ibid.
[6] At [46].
The Tribunal in Miller quoted the Tribunal’s objective in s 2A of the AAT Act and said:[7]
Construing the whole of such Act, it is plain that it could not have been intended that a technical issue of the kind which has been raised by the Respondent could defeat an application which is otherwise valid, or to facilitate use of a technicality to deny an applicant an opportunity for independent review of a decision, especially one which might compromise his very right to liberty.
[7] At [55].
I respectfully agree with the Tribunal’s reasoning in Miller.
Support for the Tribunal’s decision in Miller can be found in the Tribunal’s procedure for dealing with prescribed fees in the General and Other Division of the Tribunal. Section 29(1)(c) of the AAT Act provides that the application must be accompanied by any prescribed fee. If the respondent’s argument were to prevail, should an application be filed within time but without the prescribed fee, that application would be invalid. That is plainly not so.
Clause 24(1) of the AAT Regulation provides reads:
If an application is not accompanied by the prescribed fee, the Tribunal is not required to deal with the application unless, and until, the fee is paid.
Hence, although the Tribunal is not required to deal with the application, it is not prevented from doing so due to the failure to pay the fee. Section 69C of the AAT Act provides that the Tribunal may dismiss an application if the fee has not been paid. The Tribunal has a discretion whether or not to proceed with the hearing of the application while the fee remains unpaid.
Section 29 of the AAT Act provides the mechanism for bringing an application before the Tribunal in an efficient and timely way consistent with the objectives under the AAT Act. Parliament did not intend that those mandatory requirements were so inflexible that non-compliance would render what would otherwise be a valid application, invalid and incapable of remedy. Section 29AB also provides a mechanism to address the deficiency in the statement of reasons.
The Respondent argues that s 29AB contemplates that the application will contain some, albeit deficient statement of reasons, thus rendering the application valid. Section 29AB permits the notice to be sent to the applicant to remedy the deficiency. It does not extend to an application where no statement of reasons is provided because such a form is invalid. I respectfully reject that argument.
The section provides a mechanism to remedy an application where the statement of reasons does not clearly identify why the applicant believes the decision is not correct. That lack of clarity will arise if the wrong form is used as in the case here, or the statement of reasons section in the correct form is blank or unsatisfactory. This application was filed on a valid form, albeit the wrong form, by the applicant who could not read or write English. He was assisted by another. The application form was accepted by the Tribunal and processed in the usual manner. Notice was given to the Respondent that the application was for review of a decision under s501CA of the Migration Act, that the matter would be listed for a Telephone Directions Hearing and Hearing and provided a file number.
The Tribunal, by a s29AB Notice dated 28 September 2021, requested the applicant provide a statement of reasons within 14 days either in writing or by telephone to remedy the absence of reasons because the wrong form was used.
The Respondent argues that the telephone communication between the applicant and the Tribunal on 29 September 2021 does not reflect the applicant actually providing oral reasons. I respectfully reject that argument. The Tribunal officer recorded that the applicant wished a review of the decision “as they disagree with the outcome”. Those words in quotes are properly attributed to the applicant, and are strikingly similar to the example words used in the guide “you may think the decision is wrong”. The quote is properly regarded as the oral provision of reasons by the applicant in compliance with the s29AB Notice, on the 9^th day following receipt of the decision. Hence, the applicant had filed a valid application and provided reasons.
Further, following the request by the Tribunal Officer for more detailed reasons, the applicant complied with that request in writing by his email dated 30 September 2021 and well within the period specified in the s29AB Notice.
It was not the intention of Parliament to impose upon an applicant the technical precision, urged by the respondent, upon the Tribunal. To do so would create an onerous and technical procedure for applicants who may have limited English literacy skills, who are in jail or immigration detention and who have 9 days to apply for review of the decision.
The purpose of the application is to provide information that identifies the subject decision, that the applicant challenges the decision and the reason for the challenge. The applicant has satisfied each of those requirements.
The applicant has provided a valid application.
The Tribunal determines that it has jurisdiction to hear the substantive appeal.
THE SUBSTANTIVE APPLICATION
The applicant seeks review of a decision of a delegate of the respondent made on 20 September 2021 not to exercise the discretion under s501CA(4) of the Migration Act to revoke the original decision made under s501(3A) on 20 July 2020, to cancel the applicant’s Class AS Subclass 801 Spouse visa.
At the hearing, the applicant appeared in person and was self-represented. The respondent was represented by J D Byrnes of Counsel.
The Tribunal received into evidence the various documents filed in the Tribunal contained within the G Documents[8] and Supplementary G Documents[9] which included statements from the applicant’s mother, partner, aunt, and uncle. The Tribunal received oral evidence from the applicant and his mother, both of whom were assisted by an interpreter. The Tribunal also received oral evidence from the applicant’s partner.
[8] Exhibit A.
[9] Exhibit B.
INTRODUCTION AND BACKGROUND
The applicant was born on 1 April 1986 and is now 35 years of age. He is a citizen of Romania and the eldest of 5 siblings[10]. His parents separated when he was 9 years of age and his mother immediately travelled to Australia. The applicant and his siblings resided in an orphanage. He did not know where his father lived but he recalled his father was imprisoned, and, after his release from prison, he came to the orphanage to visit on one or two occasions. By the time the applicant travelled to Australia, his father had a new family in Spain. He has had no contact with his father since leaving Romania.
[10] Exhibit A, G14, pages 67 and 69.
The applicant attended school in Romania until he was approximately 15 years of age. He and four of his siblings travelled to Australia. One of his sisters remained in Europe and lived with their father. The applicant arrived in Australia on 13 November 2002 when he was 16 years of age. He and his siblings lived with his mother and stepfather. Their grandparents lived next door.
The applicant did not go to school in Australia. He worked in a vineyard with his mother and sister. His younger brothers went to school.
The applicant did not remember much about his first offence because he was drinking alcohol at the time and was under the influence of alcohol when he offended. He started drinking alcohol at 16 years of age. He first used drugs when he was 19 years of age. He used marijuana but then he also smoked “ice”. He said he used ice for approximately 2 years and stopped in 2016. He said he no longer uses drugs. He said, “after my sister passed away, I stopped everything.” She died in January 2016 and he stopped 4 months after her death.
The circumstances of his sister’s death were horrific. In January 2016 she was reported missing. She and her partner were brutally murdered on or about 24 January 2016. I received various media articles relating to the murder. The prosecution of the various accused has only just concluded within the last 6 months of the hearing of this matter.
I accept that this tragic event had a significant impact on the applicant and his family, including his mother. Given the applicant’s evidence that shortly after his sister death he ceased using drugs, it is useful to consider his offender history before and after her death.
The applicant’s offender history[11] records him being sentenced for his first offence as an adult in 2004 aged 18 years[12].
[11] Exhibit A, G5, pages 36 – 41.
[12] The Tribunal notes in the offender history report at pages 40-41, it refers to the applicant being dealt with on 18 February 2010 in the Children’s Court of New South Wales for two offences of common assault. He was then 24 years old and, thereafter, he was regularly before the courts.
Between 2004 and 2014 his offending included:
·29/9/2014 – contravene direction or requirement – no conviction recorded and fined $100; in default 2 days imprisonment
·27/7/2005 – breach of bail undertaking; no conviction recorded and fined $200; in default three days imprisonment
·4/8/2005 – possessing dangerous drugs on 21/5/04 – convicted and fined $250; in default imprisonment five days
·24/7/2006 – failure to appear in accordance with undertaking x 2 on 4/11/05 and 21/10/2005 – convicted and fined $500; in default imprisonment eight days
·2/5/2007 – receiving stolen property, contravene direction, possess property suspected of having been used in connection with the commission of a drug offence on 23 July 2006 - convicted and no further punishment. Declared that the time spent in pre-sentence custody be deemed as time already served under this sentence, namely, 10 weeks imprisonment
·2/8/2007 – breach of bail condition between 31 July and the 2 August 2007 – convicted and fined $200; in default four days imprisonment
·28/5/2009 – breach of suspended sentence imposed on 17/04/08 for driving disqualified – conviction recorded and suspended sentence fully invoked, three months’ imprisonment – parole release date 28/5/2009
·15/01/2010 - contravene direction on 29/1/2009 - conviction and fined $200; default imprisonment four days
·15/1/2010 – breach of probation order imposed on 17/4/08 – driving under the influence – resentenced, convicted and fined $1,000; in default imprisonment 22 days
·26/10/2012 – enter premises with intent to commit an indictable offence on 9/6/2012, producing dangerous drugs on 9/6/2012, possess utensils or pipes etc. on 11/7/2012 – no conviction and fined $450
·10/10/2014 – unauthorised dealing with shop goods x2 on 8/9/2014, contravene direction or requirement on 16/9/2014 – conviction and fined $1,000.00
·31/10/2014 – possession of a knife in a public place on 3/10/2014, failed to properly dispose of the needle and syringe - no conviction and fined $300
From 2016 the applicant’s offending continued in a similar manner and escalated in the degree of seriousness. He appeared before the Magistrates’ Court regularly with his last appearance on 21 February 2020. That period of offending can be summarised as follows:
(a)approximately 24 offences of dishonesty including stealing, unauthorised dealing with shop goods, entering premises and committing an indictable offence, and dishonestly making off without paying;
(b)approximately 8 drug offences including possessing dangerous drugs, possessing property suspected of having been used in connection with the commission of a drug offence, and possessing utensils or pipes;
(c)approximately 4 offences of possession of a knife in a public place or a school;
(d)obstructing a police officer;
(e)a number of court-related offences including failure to appear in accordance with an undertaking, and breach of bail condition; and
(f)two family violence matters, one involving his former partner and mother of his child and the other his brother AF.
Until his final appearance in court, the applicant had the benefit of without conviction sentences, convictions and fines, suspended sentences, and periods of imprisonment, including time spent in pre-sentence custody deemed as time already served.
The applicant also had a number of road traffic offences[13] commencing in February 2004. In that year, those driving offences included driving whilst disqualified, being a learner driver without a licenced driver seated in the vehicle, drive/attempt to put in motion a motor vehicle under the influence of liquor (0.28) and exceeding the speed limit x2. Thereafter, he continued to regularly commit similar offences save for a period between 2013 and 2017 for which no traffic convictions are recorded.
[13] Exhibit A, G6, pages 42-46.
THE SENTENCE THAT ENLIVENED THE MANDATORY CANCELLATION
On 21 February 2020, the applicant was dealt with in the Magistrates’ Court, for a significant number of offences which gave rise to his mandatory visa cancellation.
The Learned Magistrate in his sentencing remarks[14] said his history of traffic offences was not good and that his criminal history very much concerned the Court. He noted offences of a similar nature relating to the entry of premises and committing an indictable offence. The Magistrate accepted the applicant had a drug problem and expressed the hope that upon release the applicant will remain drug-free. He said it would be extremely foolish if, now being clean of drugs, he returned to using drugs. The applicant’s misconduct was opportunistic, unsophisticated and he had “sticky hands”. The applicant would see something and take it regardless of the ownership of the property or other consequences.
[14] Exhibit A, G7, pages 47-51.
The Learned Magistrate expressed the concern of both the court and the community in respect of the applicant’s repeated offences of possessing a knife. He then proceeded to sentence the applicant as follows:
So to the first charge of the 30th of May 2019, the knife offence, the knife is forfeited
to the Crown to be destroyed. You are convicted and sentenced to three months’ imprisonment. For the stealing on the 6th of June 2019 in relation to the pharmacy, you are convicted and sentenced to six months’ imprisonment. In relation to the money from Jong Kim you are convicted and sentenced to six months’ imprisonment. The second charge in relation to a knife in a public place on the licenced premises carpark, you are convicted and sentenced to four months’ imprisonment, and that knife again is forfeited to the Crown to be destroyed.
So the series of seven offences are stealing the keys from Myer store, Garden City.
Convicted and sentenced to six months’ imprisonment. The stealing in relation to
the $109 from the hotel, Hotel HQ: six months’ imprisonment. The stealing in
relation to the Discount Drug Store: six months’ imprisonment. The stealing in
relation to Club X in relation to those items of clothing: six months’ imprisonment.
The fraud in relation to the fuel: three months’ imprisonment. The obstruct police
where you ran away from the police: three months’ imprisonment. And the knife
offence – another knife offence – that knife is forfeited to the Crown – that is charge
7 – five months’ imprisonment.
A series of four offences. The utensil 26 June 2019 at Dutton Park; you are
convicted and sentenced to two months’ imprisonment. That utensil is forfeited to
the Crown. A further knife offence from Dutton Park, 26th of June 2019: six months’ imprisonment, with that knife forfeited to the Crown. The unauthorised dealing with shop goods in relation to another fuel drive off: you are convicted and not further punished in relation to that offence. I do not consider fines appropriate today.
The breach of bail conditions in relation to failing to report two months’
imprisonment – sorry. The offence of enter premises 21st day of July in 2019. That
is in relation to the Treasury Casino. It has been agreed by the Prosecutor, Mr
Affleck, in their submissions. This appears to be the most serious offence before the
Court. To that charge, you are convicted and sentenced to 18 months’ imprisonment. In relation to the enter premises in relation to the stealing tissues. So in relation to that, you are convicted and sentenced to 12 months’ imprisonment.
So the last charge, the burglary Count, in relation to that, again, a serious criminal
offence on the Criminal Code of Queensland. You are convicted and sentenced to 18 months’ imprisonment for that charge. So that leaves a head sentence of 18 months imprisonment. In relation to the matter are all, what is called, concurrent. They are
not cumulative. On each sentence of imprisonment, I declare 108 days of pre-sentence custody. So on the basis of your plea of guilty today, the submissions of Mr Affleck, sir, I am persuaded today to give you an opportunity of parole release date as of today, the 21st day of February 2020.
The Learned Magistrate took into account the 108 days that the applicant had spent in custody pending sentence and determined to release him on parole immediately and warned him that, if he committed further offences, his parole would be cancelled, and he would be returned to custody. That meant that he would be liable to serve the balance of his head sentence of 18 months’ imprisonment.
Four months later, on 26 June 2020, the applicant’s parole was suspended indefinitely “due to his admissions of continued substance abuse, failure to address his substance use issues, and verbal abuse of his supervising officer.[15]” A Queensland Corrective Services Immigration Report referred to the applicant’s urine test analysis on 19 May 2020 and 3 June 2020 being positive to cannabis and methamphetamine[16].
[15] Exhibit A, G10, page 59.
[16] Exhibit A, G11, page 60.
The applicant was returned into custody. His visa was mandatorily cancelled and, on completing his sentence, he was placed in immigration detention.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Migration Act which relevantly provides that:
4. The Minister may revoke the original decision if:
(d)the person makes representations in accordance with the invitation; and
(e)the Minister is satisfied:
(ii)that the person passes the character test (as defined by section 501); or
(iii)that there is another reason why the original decision should be revoked.
The Tribunal is satisfied that the applicant made the representations required by s501CA(4)(a) of the Migration Act. Accordingly, there are two issues before the Tribunal namely (a) whether the applicant passes the character test; and (b) whether there is another reason why the decision to cancel the applicant’s visa should be revoked.

It is conceded by the applicant that he does not pass the character test and I am satisfied that having regard to the sentence imposed by the Magistrates’ Court on 21 February 2020, that the applicant does not pass the character test. He has “a substantial criminal record”, within the meaning of paragraph 501(7)(c) of the Migration Act and therefore does not pass the character test on account of paragraph 501(6)(a).
The applicant cannot rely on s 501(4)(b)(i) of the Migration Act for the mandatory cancellation of his visa to be revoked. Hence, the question for the Tribunal is whether pursuant to s501CA(4)(b)(ii) of the Migration Act there is another reason why the original decision should be revoked.
When considering the exercise of the discretion in s 501CA(4) of the Migration Act, the Tribunal is bound by subsection 499 (2A) of the Migration Act to comply with any direction made under the Migration Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a Visa under section 501CA (the Direction) applies[17].
[17] On 1 April 2021, the former applicable direction, Direction No. 79, was revoked and replaced by Direction No. 90.
In deciding whether to refuse or cancel a non-citizen’s visa, or whether not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform the decision maker’s application of the considerations identified in Part 2 where relevant to the decision. Those principles may be briefly stated as follows:
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.
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.
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.
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.
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four 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 best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(iv)strength, nature and duration of ties to Australia; and
(v)impact on Australian business interests.
I will now deal with each of those Primary and Other Considerations in turn.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires decision-makers keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the direction requires decision-makers give consideration to:
(a) the nature and seriousness of the non-citizen’s conduct to date; and
(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will deal with each of those considerations in turn.
The Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 8.1.1(1) informs decision-makers of those matters to which the decision-maker must have regard when considering the nature and seriousness of the applicant’s conduct. Violent and/or sexual crimes, crimes of a violent nature against women or children regardless of the sentence imposed, and acts of family violence regardless of whether there is a conviction for an offence, or a sentence imposed, are viewed very seriously by the Australian Government and community. The decision maker must have regard to the sentence imposed by the courts, the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness, the cumulative effect of repeated offending, whether the non-citizen has provided false or misleading information to the Department and whether the non-citizen has reoffended since been formally warned or otherwise made aware in writing about the consequence of further offending.
The applicant received no formal warning about the consequence of further offending.
The applicant said he started drinking at 16 years old, consuming one or two 6 packs of beer a day, which he continued to do for about 10 years. He would drink to the point that he would lose his memory. His drinking also contributed to him committing offences and using cannabis and methylamphetamine. He was introduced to drugs and, in particular, “ice” by his younger brother, Doru.
The applicant admitted his extensive offender history and road traffic offending. He said his criminal offending occurred because he was drunk when shopping, that he did not remember the offending, and that he was influenced by friends. He accepted that he committed the criminal offences to fuel his drug habit.
The applicant said that he stopped drinking after his sister passed away. He then drank occasionally. If returned to the community, he will not consume alcohol. He said he is now older and has no desire to drink alcohol.
After his sister died, he attended a Centrelink course to address his drinking, but he did not complete the course because of his work commitments with his Uncle. There was no independent evidence of the Centrelink course.
The applicant’s evidence was that he used ice for two years and then stopped using all drugs four months after his sister’s death.
However, the applicant’s evidence about his drug use did not stand up to scrutiny.
Drug offending 2014 - 2016
The Tribunal referred the applicant to his antecedent history.
In 2005, eleven years prior to the death of his sister, he was convicted of possessing a dangerous drug. The applicant said the drug was ice but, it was not his, rather it was his brother Doru’s drugs.
In 2007, he was convicted of possessing property suspected of being used in connection with the commission of a drug offence. The applicant said the police found at his home, items in a glasses case that belonged to his brother Doru. The property was not his.
In 2012, the applicant was dealt with without conviction for possession of utensils or pipes. He could not recall that offence. He was also dealt with for entering a premise with the intent to commit an offence and producing a dangerous drug. The applicant said the items found were not his and belonged to a friend.
In 2014, the applicant was dealt with without conviction for possessing a knife and failing to properly dispose of a needle and syringe. He could not remember that offence.
The applicant failed to take any or appropriate responsibility for his offending in this period. He was a poor witness who attempted to exonerate himself and place blame on others for those offences. I do not accept his evidence and am satisfied that he was not being truthful when answering the Tribunal’s questions.
Drug offending 2016 to date
Having given evidence that he stopped drinking and using drugs four months after his sister died, the antecedent history painted a very different picture. He was convicted for drug-related offending in June 2016, and numerous offences of stealing in 2016 and 2017 which the applicant admitted were committed to fuel his drug habit. He was convicted for drug offences in April 2018, May 2019 and February 2020 along with numerous stealing offences over the period 2018 - 2020.
The applicant changed his evidence and said that it was some time after his sister’s passing that he started to use other drugs, and that it was now 2 ½ years since he last used drugs. I am satisfied that he was using drugs after the death of the sister, but he had not been drug-free in the 2 ½ years before appearing before the Tribunal.
The applicant’s Statement of Facts, Issues and Contentions (SOFIC) prepared by his former solicitors dated 31 May 2021 and in relation to the offending post-2016 giving rise to the mandatory cancellation reads:
Our client’s commencing the Subject Conduct, and offending from 2016 onwards occurred in the context of a worsened drug habit and excessive alcohol consumption which arose from his sister’s death.
In respect of the sentence that enlivened the mandatory cancellation of the applicant’s visa, the Learned Magistrate’s sentencing remarks on 21 February 2020 clearly refer to a significant drug problem at the time of his offending and His Honour expressed the hope that upon his release the applicant would not return to drug abuse.
The applicant said he did not remember being dealt with by the Magistrates’ Court for those offences. The applicant was referred to the sentencing remarks of the Magistrate[18]. He then recalled the matters and the breach of parole which included urine analysis tests on 19 May 2020 and 3 June 2020 in which he tested positive for marijuana and methylamphetamine. He said the positive results were the consequence of being present in a house where people were smoking the drugs. He said because of them smoking, the drugs got into his system and that is why he tested positive. The applicant said he did not consume any drug whilst on parole.
[18] Exhibit A, G7, pages 47-51.
The applicant’s partner’s evidence was strikingly different. She said she was not surprised that the applicant’s urine test was positive to drugs and that he was regularly using drugs at that time and when on parole.
I am satisfied that the applicant was not truthful in giving evidence to the Tribunal about his drug offending and was wholly unreliable. The suggestion that the positive urine tests were the result of being present in a house where others were smoking was unbelievable, particularly when compared with the evidence of his partner that he was at that time regularly consuming drugs.
His evidence was also contrary to the Department of Home Affairs file note recording information from Queensland Corrective Services[19] that the applicant’s parole was suspended indefinitely due to the applicant’s admission of continued substance use, failure to address his substance use issues, and verbal abuse of his supervising officer.
[19] Exhibit A, G10, page 59.
The applicant said that he had an issue with his parole officer. He was supposed to go to work with his uncle, but his parole officer wanted him to attend the parole officer’s office within ½ an hour. He could not attend. He was far away from the office and his uncle required him to stay at work until 6.00pm. As a consequence, the parole officer reported him for breach of role. He was then arrested.
The applicant said he started a drug and alcohol rehabilitation course when in jail but did not complete the course because he was released on parole. There is no independent evidence that he started a rehabilitation course. He has not completed any course to address his drug and alcohol use.
Other offending
The applicant was referred to a number of alleged offences involving violence.
The police incident report from Mudgee Police Station[20] was read to the applicant. It is alleged that on 15 October 2003 the applicant approached a man in the street, grabbed and struck the man, left by car and later returned, took hold of the person around the throat and threw him towards a car and a wall. The applicant denied the incident occurred as alleged and said that he stepped into a fight between his friend and others and tried to end it. The allegation was a lie to get him into trouble. The allegations were all false.
[20] Exhibit B, R3, page 299.
He did not remember the common assault conviction in 2010 committed when he was a child because of his alcohol use and he was too young.
He did not remember his 2016 common assault conviction. The details of the offence were read to the applicant[21]. He pushed a security guard at a Chemist Warehouse premises who was trying to stop him taking property. The applicant could not remember the incident.
[21] Exhibit B, R2, pages 201 – 212.
In his evidence-in-chief, and in response to a question from the Tribunal, the applicant said that he had not been in any trouble while in prison or immigration detention.
On 28 May 2016, the applicant was involved in a fight in prison. The Queensland Correction Services Breach of Discipline records evidence was taken, and the applicant pleaded guilty[22]. The officers report says that the applicant had to be restrained and placed in mechanical restraints. The applicant said it was self-defence. The record indicates he started the incident.
[22] Exhibit B, R4, pages 377 – 386.
After the applicant’s visa was cancelled and on 31 October 2020, the Queensland Police Service Court Brief reported the applicant punched a victim and fellow prisoner to the right side of the face and ribs[23]. The applicant said he stopped a fight between the victim and another prisoner. He denied punching the victim and said he only pushed him away from the fight. He knew his involvement in a fight might affect his migration status. He said he could not stay and watch someone punch his friend.
[23] Exhibit B, R2, pages 32 – 33.
On 19 March 2021, Queensland Corrective Services record the applicant being involved in a fight and was seen exchanging punches with another prisoner[24]. The applicant said that he was attacked by another prisoner. He acted to protect himself when exchanging punches. He acted in self-defence. The applicant’s evidence appears to be consistent with the record. I accept his evidence about that incident.
[24] Exhibit B, R4, page 405.
The applicant was asked why he did not refer to these incidents in his evidence-in-chief. He said that he did not know how to read or write English and he did not think it necessary to refer to these incidents. When further pressed, he said he did not understand the earlier question from the Tribunal. He then said that those in jail would punch a person in the face for no good reason. He blamed the other prisoners for the incident. He never made trouble. Trouble came to him without reason.
I do not accept that the applicant did not understand the question. Nor do I accept that he never made trouble and that the blame for the incidents rested solely with other prisoners. The applicant was not truthful in giving evidence. He was clearly involved in incidents of violence in custody and immigration detention, and I prefer the various reports which indicate that he started the incident.
The applicant was asked about those offences involving possession of a knife.
On 3 October 2014, the Queensland Police Services Court brief[25] records the applicant having a small pocketknife in his right jacket pocket. The blade was approximately 7cm in length. He said it was given to him by his grandfather.
[25] Exhibit B, R2, page 255.
The applicant acknowledged the offence and said it was because they killed his sister and he was scared they wanted to kill him too, so he used to have a knife in his pocket. He was scared of those who killed his sister. When put to him that his sister’s death was not until 2016, he said he had the knife because he was melting gold and he always opened mobile phones, laptops and televisions and used the knife to cut out the little pieces of gold which he would then melt.
The applicant’s explanation was unconvincing. His evidence was neither credible nor reliable.
The police record of that incident also said, when asked if he had any other weapon, the applicant placed his hand into his left internal jacket pocket. Police grabbed the hand of the defendant and noted he was holding a syringe which was wrapped in paper.
On 30 May 2019, the Queensland Police Service record indicates the applicant was stopped by police for riding a bicycle without a helmet[26]. Police located a silver folding knife which the applicant said he used to eat pears. He had no pears in his possession. The applicant could not remember the incident. Nonetheless, he accepted that the excuse also given to police, was that he had the knife in his possession because of a fear of those who murdered his sister.
[26] Exhibit B, R1, page 10.
On 26 June 2019, Queensland Police Service records indicate the applicant was found with a machete[27]. In response to questions from the Tribunal, the applicant accepted that on 26 June 2019 he was found in possession of a machete. It had a large blade and a handle. He said the machete was in the car, and police stopped the car and located the machete in the boot. It was his mother’s car or his brother’s car. He did not know the machete was in the car and did not see it in the car. He never had the machete in his possession before the police found it in the car.
[27] Ibid, page 15.
The Tribunal then read to the applicant the record which reads as follows:
When questioned in relation to the machete, the [applicant] stated to police he found the machete in an abandoned house and liked the look of it. The [applicant] stated girlfriend told him to keep the machete in case he had to cut some branches or bushes. The [applicant] stated that he normally carries a knife for protection as his sister was murdered but he only had the machete because it looked different.

The applicant accepted that record was what he told the police. He said what he told police was the truth. He then said in evidence that he had not been drinking or using drugs. He was not found in possession of instruments for drug use. The Tribunal referred the applicant to the police record, that he was then placed under arrest for illegal use of a motor vehicle, and police searched the car and found in the glovebox a glass pipe in a small bag. The report reads[28]:
When questioned in relation to the glass pipe, the [applicant] stated that his friend Chris from Mt Gravatt left his bag in his car and the glass pipe that was in the bag belonged to Chris. The [applicant] however stated to police that he was aware the pipe was in the bag as he opened the bag earlier and saw the pipe. The [applicant] stated he made no attempt to take the pipe to a police station and believed the pipe was used to smoke ICE.
[28] Ibid, page 14.
The applicant accepted that the police records accurately recorded what he said to police. He could not explain the inconsistency with his evidence before the Tribunal. He agreed the car was his mother’s car and this incident occurred after he put petrol in the car and left without paying for the petrol. He said the ice pipe was not his, it was his girlfriend’s ice pipe. He then changed his evidence and said it was not his girlfriend’s but was Chris’s ice pipe. When asked why he gave different evidence about the owner of the pipe he said he was sorry, he did not know what to say.
His evidence about the whole of this incident was unsatisfactory. He was not a credible or reliable witness.
The applicant agreed he failed to report to police when required to do so. The applicant said that he kept forgetting things after his sister died. He was not the person he was. Yet the applicant failed to appear in compliance with undertakings before the death of his sister. He could not remember why, prior to her death, he failed to comply with such undertakings.
The applicant was asked about a theft in the watch and jewellery area of a department store that occurred on 7 June 2019[29]. The police record said that his partner was a co-offender who distracted staff while the applicant stole some keys. He was also asked about an incident on 9 June 2019[30] at a hotel when he stole $804.05 from a patron’s poker machine winnings and left in the company of a woman. The applicant said that his partner was with him on those occasions, but she did not know what he had done.
[29] Exhibit B, R1, page 11.
[30] Ibid, page 12.
The applicant accepted his offender history in relation to stealing and entering the property of another. He accepted his conduct demonstrated a disregard for others and their property. He said he was drinking and on drugs which was inconsistent with his earlier evidence that he stopped drinking and drugs after his sister’s death. He now said sometimes he drank alcohol and used drugs after her death which got him into trouble.
The applicant said he tried to stop offending and he tried to get counselling after he was released from jail, but he breached his parole and was returned to jail in 2020.
The applicant accepted he used cannabis and methylamphetamine when living at his mother’s house. He used it in the shed at a time when young children were in the home. The children did not come in the shed. He said he was not intoxicated when the children were present. He used drugs when the children were sleeping or not at home. His mother never knew.
He was referred to an incident on 25 May 2018 when police attended his mother’s house and found cannabis and implements for smoking drugs, including an ice pipe. The applicant then said his mother knew he was using drugs but never saw him do so. She did not see him using drugs at her house.
Family Violence
The applicant was asked in cross-examination about alleged incidents of family violence.
The applicant was aware of a complaint by his previous partner that he had been violent towards her[31]. In the Application for Protection Order dated 10 November 2017, his partner wrote that the applicant had punched her in the mouth and head, and on one occasion, she went to the emergency department because she was bleeding when the applicant hit her with a mobile phone[32]. The applicant attended her house uninvited. She heard he had a gun. She alleged he, “[s]aid he’d kill me then kill himself. Used machette and bat and knifes to try and threaten me”. She accused the applicant of chocking her, hitting her, sticking her with objects and that he picked up her daughter so that she would have to attend his house and collect her. He attended her home uninvited. The applicant had been detected on a security camera mounted on her front door.
[31] Exhibit B, R2, pages 284-292.
[32] Ibid, page 292.
The applicant said the allegations were lies and his former partner was trying to place a domestic violence order on him. He was never violent. The applicant was aware of the Protection Order dated 13 December 2017. He went to Court to defend himself against the allegations. He presented his case to the Court and told the Court she lied. He said he was not found guilty. The applicant agreed the Court did not accept what he said.
The protection order was made, and the applicant said he complied with the order. Has had no contact with his partner and daughter since the order. They both now live in New Zealand.
I do not accept the applicant’s evidence that his former partner lied with the intention of obtaining a protection order against the applicant. The Court had the benefit of hearing from the parties and rejected the applicant’s evidence. The Protection Order was granted. I am satisfied that the court was satisfied that it was appropriate to impose the Protection Order.
The applicant was also involved in an incident at his home with his brother on 17 June 2019 that gave rise to a Protection Order dated 14 October 2019. The police record says that the applicant’s girlfriend was in the bedroom and was screaming. When the brother attempted to enter the applicant’s bedroom, the applicant exited the bedroom holding two large kitchen knives and threatened to stab the brother. The brother left the house and located a shovel to protect himself. The applicant then left the home taking the brother’s wallet and mobile telephone. When police arrived, the applicant said he had a fight with his brother because he saw his girlfriend naked.
When the allegations were put to the applicant, he said he did not threaten his brother. He did not remember being in possession of kitchen knives. He said his brother was trying to get his mother’s car to go to Court and, because he did not have a licence, the applicant refused. The brother started punching the bedroom door and “going off”. The applicant changed his evidence and said he had the knives to try and stop him taking the car.
The Tribunal read the allegations to the applicant. The applicant said at the time his mother was in England. The brother wanted to take the mother’s car. The applicant said that his brother started “this scandal not me”. The brother tried to open the door to enter the bedroom and the applicant was trying to keep the bedroom door closed. The brother came at the applicant with a shovel to hit the applicant in the head. He took up the knives to protect himself because his brother had the shovel. He said his girlfriend was not naked. The brother lied to the police. It was all about the brother wanting the car.
I do not accept the applicant’s explanation for the incident involving his brother. He initially said the allegation was a lie and denied the existence of the knives. He then said he had the knives to stop the brother taking the car. He then said that he had the knives because his brother tried to enter the bedroom and attack him with a shovel.
Counsel referred the applicant to his former legal representative’s SOFIC[33], which submitted there was no evidence to suggest the applicant had engaged in conduct constituting family violence. He said he told his legal representative of the domestic violence. He could not explain the submission. I do not accept the applicant’s evidence that he told his legal representative about the incidents of family violence. The applicant’s evidence infers that the legal representative misled the Tribunal. I am satisfied that the applicant was not being truthful when giving this evidence.
[33] Exhibit A, G19, pages 91-105 at 101.
The applicant was not being truthful with the Tribunal and gave the impression of making up the evidence in an attempt to deal with the issues as they arose during questioning. I reject that the applicant’s brother lied for the purpose alleged by the applicant, when reporting the incident to the police. I am satisfied that the applicant was violent and did introduce the kitchen knives into the incident.
General comments
The applicant’s offending was serious. Albeit not the most serious offences of their type, there were a significant number of offences over an extended period of time from 2004, two years after the applicant arrived in Australia until 2020 when he breached his parole by consuming cannabis and methamphetamine. After his sister’s death, there was an increased frequency of offending of the same or similar type and a demonstrated trend of increasing seriousness. I accept that the death of his sister had a significant impact on the applicant, but there were other factors, including drug and alcohol abuse, that had been a long-term issue for the applicant before his sister died.
The applicant was not a credible or reliable witness. That he said to the Tribunal that he stopped consuming drugs and alcohol within 4 months of his sister’s death was plainly untrue and said with the intention of misleading the Tribunal by suggesting a significant period of drug and alcohol abstinence. I am satisfied that the failed urine analysis was due to continued drug use when on parole and that he was not the innocent victim of passive smoking by those using drugs. He has had a continuing drug and alcohol problem for many years. It is noteworthy that he would not accept responsibility for those drug offences for which he was convicted or dealt with prior to his sister’s death.
The applicant has a number of offences of violence including when in prison and after his visa cancellation. Other than the one incident to which I have referred, I do not accept that the applicant was an innocent victim or was merely acting in self-defence of himself or another.
The offending also included domestic violence and the threat to use, and the introduction of, weapons into the incidents. His former partner referred, amongst other things, to being struck by a mobile phone and being threatened with a machete, a bat and knives. His brother referred to the applicant introducing two large kitchen knives into the altercation. I do not accept the applicant’s denials with respect to either incident of domestic violence or that each complainant lied to get him into trouble.
In relation to the allegations involving his former partner, he defended the proceeding and was not believed. By virtue of the court-imposed Protection Order, I am satisfied that he was violent towards his former partner. In respect of the incident involving his brother, and the court imposed a Protection Order, I am satisfied that violence occurred. I am also satisfied that the applicant introduced the knives into the incident which was an aggravating feature of this incident.
There were a number of offences in which the applicant was carrying a knife and, on one occasion, a machete. The applicant’s evidence about the reason for carrying the knives was wholly unsatisfactory. Insofar as he attributed the incident in 2014 to his sister’s death (which occurred in 2016), this was another indication that his evidence lacked credibility and reliability. A further example was the incident involving the machete and his endeavour to deceive the Tribunal by suggesting he did not know the weapon was in the car. I am satisfied that in relation to that incident he lied to the Tribunal to minimise his responsibility and culpability.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the applicant’s offending to date, including any escalation in offending, properly informs the assessment of the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct. The Direction that the Australian community’s tolerance of harm becomes lower as the seriousness of the potential harm increases is also a relevant consideration.
The Tribunal has no confidence that the applicant will not offend in a similar manner in the future. The Learned Magistrate expressed concern about the applicant’s offending and the hope he would not return to using drugs. Having been given the opportunity to return to the community on parole in February 2020, he produced positive urine tests for cannabis and methamphetamine commencing three months from his release on parole in May 2020 and then in June 2020. The applicant briefly started but did not continue with or conclude any rehabilitation program and there is no satisfactory evidence before the Tribunal that he has engaged in any program when he was in the community on parole, or that he would pursue a program if returned to the community.
The incidences of family violence are to be regarded as so serious that even a low risk of reoffending is unacceptable and that such risk of future offending would not be tolerated by the Australian community. Family violence is plainly abhorrent, and the Australian community would have no tolerance of a person being exposed to even a low risk that such offending might be repeated. The applicant’s former partner and child no longer reside in Australia but the applicant’s propensity to violence and use of drugs and alcohol are relevant considerations. The Tribunal is satisfied that the risk of family violence remains and is an unacceptable risk.
The applicant has shown a disregard for and contempt of court orders and the principles of law that underpinned the Australian community by his offending. He has breached bail, failed to appear before Courts, drove a motor vehicle on four occasions when unlicensed, and on four occasions when disqualified from holding or of attaining a licence. He has three offences of driving under the influence of alcohol. He acknowledged that by his offending he placed others in the community at risk.
He failed to take any or adequate responsibility for a significant number of offences, which is also indicative of a lack of remorse or contrition for his offending. He failed to take any or adequate steps to address his recidivist criminal behaviour. The fact that he generally lacked credibility and reliability when giving evidence to the Tribunal is also a concern. The Tribunal is satisfied that the applicant is not person to whom the privilege of remaining in Australia should be extended.
Given the factors discussed above, the Tribunal is satisfied that this Primary Consideration 1, weighs heavily against the applicant and in favour of the non-revocation of the applicant’s visa cancellation.
PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE
Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
Paragraph 8.2 (3) provides that when having regard to the seriousness of the family violence the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and whether there is a trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence; and
(c)rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.
Paragraph 8.2(3)(d) also requires the Tribunal to have regard to whether the non-citizen has reoffended since formally being warned or made aware by a court, law enforcement or other authority, about the consequences of further acts of family violence; including warnings about the non-citizen’s migration status should he or she engage in further acts of family violence.
Paragraph 4(1) defines family violence to mean “violent, threatening or other behaviour by a person that coerce is or controls a member of the person’s family (the family member),or causes a family member to be fearful”.
I have discussed above the circumstances of family violence which I will not repeat.
Ministerial Direction 90 makes very clear the Government’s serious concern about conferring on non-citizens who commit family violence, the privilege of remaining in Australia.
The incidents of family violence are serious. By his denial of both incidents of family violence, and his assertion that each complainant lied, the applicant has failed to demonstrate an acceptance of any responsibility for his conduct.
Albeit the applicant had briefly engaged in drug and alcohol rehabilitation counselling, he has taken no significant steps to identify and address those factors that arguably contributed to the family violence and there is no satisfactory evidence before the Tribunal that he will do so in the future if returned to the community. As I have said, the fact that the applicant introduced a weapon into the incident with his brother is serious.
The Tribunal finds that this Primary Considerations 2 weighs heavily against the applicant and in favour of the non-revocation of his visa cancellation.
PRIMARY CONSIDERATION 3 – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant has a number of nieces and nephews to whom this Primary Consideration applies. The best interests of each child should be given individual consideration to the extent that their interests may differ.
Nieces KF and CF
The applicant’s nieces KF and CF are aged approximately 9 and 10 years respectively. They are the daughters of the applicant’s brother, Doru, and his former partner, who have separated.
Both children lived with the applicant’s mother for approximately two years. Also living in the house was Doru and the applicant when he was not in jail or immigration detention. Both nieces have recently returned to live with their mother, approximately two weeks prior to the hearing of this application.
The applicant said he enjoyed a close and loving relationship with both his nieces, and he had a particularly strong relationship with KF. When he resided with his mother, he saw both children daily. He played a role in their day-to-day lives including playing with both, buying them games and toys, watching television together, colouring in, and providing support to them.
The applicant’s mother Mrs VD corroborated the applicant’s evidence and that he was very close with both nieces. Both ask regularly when the applicant will return to the home and they have a present for him upon his return.
She described the applicant’s loving relationship and how he engaged with his nieces. He bought them gifts and they love him dearly. He made KF a toy kitten which she loves and keeps with her at all times. Mrs VD said that the children now visit her every weekend, and she needs the applicant to return home to help her care for them when they are with her.
The applicant said that KF will suffer tremendously if he were not to return to the community. He described their relationship as very close. CF will also suffer a lot and will be heartbroken if he does not return.
When in jail, both children sent the applicant letters. Neither child visited the applicant in jail. KF has not visited the applicant in detention, but CF visited the applicant when his mother came to detention five months ago.
Late sister’s children J, R, and L
The applicant’s late sister had three children namely J aged approximately seven years, R aged approximately 11 years, and L aged approximately 13 years.
The applicant said that for two years the children lived with his mother but have since moved to live with their father’s parents. After they moved, the applicant has had contact with them only once or twice. They live two hours’ drive from the applicant and his mother’s home.
In the time he spent with each of the nieces, he had a close relationship with them. He said they would be more affected than KF and CF should he be relocated to Romania because following the death of his sister they grew up with the applicant assisting in their care. They will suffer a lot even though they no longer reside with the applicant’s mother.
Niece DF
The applicant’s niece DF turns approximately 3 years of age next month. Her father is the applicant’s brother, Daniell, who was recently sentenced to a term of imprisonment. DF’s mother often brought DF to the applicant’s mother’s home and the applicant would help care for her. Again, he had a close and loving relationship with her.
The applicant said that DF will suffer should the applicant not return to the community because she spent a lot of time at the applicant’s mother’s home and with the applicant and they also enjoyed a close and loving relationship.
Nephew SF
The applicant’s nephew SF is approximately 2 ½ years of age. The applicant did not see much of SF. His father is the applicant’s brother, Achim, the subject of the Protection Order, and SF’s mother does not bring SF to visit very much. Nonetheless, he said they were close. However, the applicant conceded he will not be as significantly affected should the applicant not return to the community. He is very young and does not know the applicant very well.
The applicant agreed that the best description of his relationship with his nieces and nephews was that of a close and loving uncle.
Nephew CF
The applicant’s mother in evidence referred to an additional nephew, CF, who is 6 years of age. His father is the applicant’s brother, Benjamin, who was deported to Romania following a mandatory visa cancellation. She said the applicant has a close relationship with CF. CF visits the applicant’s mother every 2 – 3 days.
The applicant’s partner Ms RB also corroborated the evidence of the applicant and his mother with regard the relationship the applicant enjoyed with his nieces and nephews. She observed him in their company and said he cared for them. In reference to KF and CF, their father Doru was not very involved in their care, that Doru had mental health problems and the applicant was performing a parenting role with respect to both of them.
Conclusion
The applicant has eight nieces and nephews. KF and CF have spent some time living in the applicant’s mother’s house and, as a consequence, he saw them daily when he was not in jail or detention. The Tribunal accepts that he enjoyed a close and loving relationship with them both and they would be very upset should the applicant return to Romania. Both nieces have returned to the care of their mother so he would not be expected to continue the same parenting function that he did before being taken into custody.
Similarly, the three daughters of the applicant’s late sister also lived in the applicant’s home and were close to the applicant. Again, the Tribunal accepts that they would be upset should the applicant return to Romania. However, they are no longer living with the applicant’s mother and the applicant would not be expected to play a significant parenting role in the future.
However, I am not persuaded that they would be more affected than KF and CF should the applicant return to Romania. The fact that he has only seen them on one or two occasions since they moved to live with their father’s parents, and that he would be able to maintain contact with them from Romania including through social media, will enable the impact to be reduced.
As for the other three children, they too would, to varying degrees, be upset or disappointed should the applicant be returned to Romania, but not to the same degree as the other children.
However, the applicant has spent time in jail over the years and, more recently, immigration detention. His contact with the children, and in particular KF and CF, has mainly been by letter. He would have the ability to maintain similar contact and through the internet should he return to Romania. The applicant’s use of drugs such as in the shed when children have been in the house, is not in the best interests of the children.
Nonetheless, it is in the best interests of the applicant’s nieces and nephews that he continues to reside in Australia and make a valued contribution to each of them as a caring and loving uncle, and to assist his mother with the care of those children when they attend at the mother’s home. I note the applicant intends, if returned to the community, to reside with his mother, brother and partner.
Having regard to the whole of the evidence and balancing the different considerations of each of the children, the best interests of those children weigh in favour of the applicant and the revocation of the applicant’s visa cancelation. The Tribunal gives medium weight to this Primary Consideration 3 in favour of the applicant.
I also mention the applicant’s daughter who is 11 – 12 years of age. She now resides in New Zealand and is therefore not a child living in Australia affected by the decision. She is not a child whose interest is to be taken into account for the purpose of Primary Consideration 3.
PRIMARY CONSIDERATION 4 - THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In making the assessment for the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction[34].
[34] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Consistent with the Direction, the Australian community would expect the applicant’s visa to remain cancelled. It is a matter of weight that the Tribunal ascribes to this Primary Consideration.
The applicant was a recidivist offender from 2004 and in 2020 breached parole by using cannabis and methylamphetamine. His offending included drug and dishonesty offences, breach of court orders, assault, domestic violence and breach of Australian road traffic rules, which demonstrate the applicant has little regard for Australia’s laws. He has been involved in violence when in custody and immigration detention, including after he was advised of his mandatory visa cancellation.
The applicant was not a credible and reliable witness as discussed above and failed to take responsibility for his offending, often blaming others for the offence for which he was convicted or otherwise dealt with by the courts; or that others lied to implicate him in offences he did not commit such as the incidents of family violence. He blamed others for his violence when in custody.
Further, the applicant failed to demonstrate any significant rehabilitation program either undertaken or to be undertaken in the future which might give some hope of abstinence from alcohol or drug consumption and address his violent behaviour, including family violence. He said he would like to do courses in the future but did not know what courses were available. He said when previously released from prison he tried an alcohol and drug course but did not complete it. The Tribunal received no further evidence about the course.
Insofar as he made repeated promises in evidence not to consume drugs or alcohol in the future, the applicant did not satisfy me that the Tribunal could put any significant weight on his promise. The applicant did say he was currently receiving treatment for his mental health condition and was taking medication (3 tablets a day), and his partner said in evidence that he was recently looking much better. However, there was no report or statement from those treating the applicant from which the Tribunal might gauge his potential for the future and the extent of any rehabilitation achieved, if at all.
I have had regard to matters personal to the applicant, for example, the impact his sister’s death had on him. There was evidence from the applicant’s mother, aunt and uncle and girlfriend that he and his sister were very close, and her death had a considerable affect upon him including depression. A further example is the separation of his parents and his residence in an orphanage before travelling to Australia.
The expectation of the Australian community is that the applicant’s visa remains cancelled. His conduct raises serious character concerns. I have allowed some reduction in the weight to be given to this Primary Consideration including because of matters personal to the applicant.
The Tribunal finds that this Primary Consideration 4 weighs significantly against the applicant and the non-revocation of his visa cancellation, albeit not the heavy weight that I have otherwise attributed to other Primary Considerations 1 and 2.
OTHER CONSIDERATIONS
It is necessary to consider the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
Other Consideration (a) - International non-refoulement obligations
No evidence has been led that enlivens the Tribunal’s obligation to consider this Other Consideration. No weight is attributed to this Other Consideration (a).
Other Consideration (b) - Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The applicant is 35 years of age. He suffers from depression and is having some treatment for this condition and receiving medication whilst in immigration detention. He also says he was an alcoholic as a consequence of his sister’s death, but there is no independent evidence to corroborate that statement. He is otherwise in good health.
The applicant agreed that there would not be any cultural problems living in Romania. He speaks, reads and writes Romanian. He said he is a painter and tiler, uses tools and is a good worker and he believed he would be able to obtain employment in Romania.
The Tribunal accepts that initially the applicant may have difficulty adjusting to life in Romania. The whole of his family lives in Australia, save for a brother and sister who live in England. He has no family or contacts in Romania. His partner has said that she would go with the applicant if he is return to Romania.
Insofar as the applicant has referred to his depression, there is no evidence from a mental health or general practitioner detailing the extent of the condition. There is no evidence about his ongoing need for treatment or medication or the availability of treatment for such condition in Romania. Hence, the Tribunal cannot make a finding of fact with regard to such treatment he requires or may receive in Romania. Nonetheless, he would be able to pursue treatment in the same way as other Romanian citizens.
The Tribunal is satisfied that while the task of re-establishing himself in Romania may be inconvenient, it will not be long term and he will adjust to his new surroundings and lifestyle and maintain a standard of living consistent with other members of the Romanian community.
Nonetheless, the Tribunal finds this Other Consideration (b) weighs moderately in favour of the applicant and the revocation of his visa cancellation.
Other Consideration (c) – Impact on Victims
This Other Consideration requires that decision-makers must consider the impact of the s 501 or s 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where information in this regard is available and the non-citizen is being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
No evidence has been led that enlivens the Tribunal’s obligation to consider this Other Consideration. No weight is attributed to Other Consideration (c).
Other Consideration (d) - Links to the Australian Community

In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that I must have reflect the principles in paragraph 5.2, and that I must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
(a)the strength, nature, and duration of ties to Australia; and
(b)the impact on Australian business interests.
There was no evidence enlivening consideration of paragraph 9.4.2(b). The applicant has the opportunity to work for his aunt and uncle should he return to the community which is relevant to strength, nature and duration of ties to Australia which I take into account. However, there is no evidence that there will be any impact on business interests in Australia.
The strength, nature and duration of ties to Australia
The whole of the applicant’s family resides in Australia. I have referred above to his nieces and nephews which I will not repeat.
As for the applicant’s brother, Achim, with whom the applicant had an altercation resulting in a protection order dated 14 October 2019, the applicant said that he no longer speaks with or associates with that brother following that incident. Nonetheless, the applicant said that he thought they were “alright”.
His mother said that the applicant and Achim had a row when she was in England but now they enjoyed a good brotherly relationship. I do not accept the mother’s evidence as an accurate description of their relationship in circumstances where they no longer speak.
I prefer the applicant’s evidence about the relationship with Achim.
The applicant lived with his mother and brother Doru and will continue to do so should he return to the community. His partner Ms B also currently lives in that home. They love each other and it is their intention to marry as soon as possible and continue to reside in that premises.
The applicant’s partner Ms B provided a handwritten statement and gave evidence. Ms B described the applicant’s close relationship with his nieces and nephews. She described the applicant’s drug use and was present when he committed two offences. She denied any involvement in the offences and only became aware of them when they left each venue. She felt uncomfortable. I accept that evidence.
Ms B said that applicant has a drug problem, and she will help and support him to remain drug free. She referred to the difference in the applicant since he has engaged in counselling. He will return to work with his aunt and uncle. She referred to the impact the sister’s death had on the applicant and his family and that the trial of those accused of her murder was only finalised 6 months ago. If the applicant returns to Romania, she will go with him.
The applicant’s mother, Mrs DV, provided two handwritten statements and gave oral evidence. She said she was 62 years of age and her health, including her mental health was not good. She referred to the death of her daughter and her son, BF, who was deported, and that she would be unable to bare the loss of another child (the applicant) should the applicant be returned to Romania.
Mrs DV has resided in Australia since 1998 with all of her family members, including her parents, sister, brother and extended family. Her father has passed away and her mother, namely the applicant’s grandmother, is 84 years of age. The grandmother is anxious for the return of the applicant and fears that she may not see him again should he return to Romania.
Mrs DV described the applicant as the only person who can provide her with the help she needs in her daily living. He is the one who has in the past, and would in the future, help her with the care of her grandchildren, the applicant’s nieces and nephews, when they reside at her home. She wants the applicant and Ms B to live with her.
The Tribunal received a handwritten statement from the applicant’s aunt, Ms DD, for and on behalf of herself and her husband Mr MD. They spoke glowingly of the applicant, confirmed the help he provides to his mother and the closeness of his relationship with his late sister and the impact the tragedy of her murder had upon the applicant.
Ms DD said that the applicant worked for she and her husband and was a reliable and diligent hardworking employee but that after his sister’s death they had not heard much from him. If the applicant is returned to the community it is proposed he will return to their business and, as they are intending to reduce their role in the business, there is a need for the applicant to have a significant function in the business, in the future.
Ms DD also confirmed the contribution the applicant made to the day-to-day care and support of his mother.
The Tribunal accepts the applicant’s evidence and that of his mother, partner, aunt and uncle that he has significant links to Australia. The Tribunal is also satisfied that the applicant’s mother is particularly reliant upon the applicant for support of both herself and the various children that are in her home from time to time. The Tribunal also notes the evidence of Ms B that the applicant’s brother Doru has mental health issues and does not contribute to the function of the household.
Mrs DV has lost two children and the applicant’s relocation to Romania will have a significant impact upon her, her health and wellbeing, and will be distressing which adds to the weight the Tribunal gives to this Other Consideration in favour of the applicant.
Accordingly, the Tribunal is satisfied that this Other Consideration (d) weighs heavily in favour of the applicant and the revocation of his visa cancellation.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the applicant’s visa: either (1) the applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Migration Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Migration Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction.
The Tribunal is particularly conscious of the serious concerns expressed by Government about non-citizens who engage in family violence as reflected in Direction 90, in addition to his failure to pass the “character test”.
Accordingly, the Tribunal finds:
(a)Primary Consideration 1 – Protection of the Australian community – weighs heavily against the applicant and in favour of the non-revocation of the visa cancellation;
(b)Primary Consideration 2 – Family violence – weighs heavily against the applicant and in favour of the non-revocation of his visa cancellation;
(c)Primary Consideration 3 – Best interests of minor children – is given medium weight in favour of the applicant and the revocation of his visa cancellation;
(d)Primary Consideration 4 – Expectations of the Australian community – weighs significantly against the applicant and in favour of the non-revocation of his visa cancellation (albeit a lesser weight than that given to Primary Considerations 1 and 2);
(e)Other Consideration (a) – International non-refoulement obligations – is not enlivened on the evidence before the Tribunal. Consequently, no weight is attributed to this Other Consideration;
(f)Other Consideration (b) – Extent of impediments if removed – weighs moderately in favour of the applicant and the revocation of his visa cancellation;
(g)Other Consideration (c) – Impact on victims – is not enlivened on the evidence before the Tribunal. Consequently, no weight is attributed to this Other Consideration; and
(h)Other Consideration (d) – Links to the Australian community – weighs heavily in favour of the applicant and the revocation of his visa cancellation.
The combined weight of Primary Considerations 1, 2 and 4 is such that it outweighs the weight attributed to Primary Consideration 3 and Other Considerations (b) and (d).
The Tribunal therefore finds that, taking into account all of the Considerations in the Direction, they weigh against the revocation of the mandatory cancellation of the applicant’s visa.
Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the applicant’s visa.
DECISION
For the reasons outlined above, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review dated 20 September 2021.

I certify that the preceding two hundred and thirty-eight (238) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

..................[SGND]........................
Associate
Dated: 13 December 2021

Dates of hearing:   23 & 24 November 2021 (by videoconference)

      Applicant: Self-represented

      Advocate for the Respondent: J D Byrnes of Counsel

Dates of hearing:	23 & 24 November 2021 (by videoconference)
Applicant:	Self-represented
Advocate for the Respondent:	J D Byrnes of Counsel