FCFY and Minister for Home Affairs (Migration)

FCFY and Minister for Home Affairs (Migration) [2018] AATA 4184 (8 November 2018)
Division:GENERAL DIVISION
File Number: 2018/4893
Re:FCFY
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:8 November 2018
Place:Sydney

The Tribunal affirms the decision under review.
........................[sgd]...........................................
Dr L Bygrave, Member
CATCHWORDS
MIGRATION – Class BF Transitional (Permanent) visa – mandatory cancellation – non-revocation – failure to pass character test – substantial criminal record – Ministerial Direction No. 65 – protection of the Australian community – nature and seriousness of conduct to date – risk to the Australian community if conduct repeated – best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Anaki and Minister for Immigration and Border Protection [2016] AATA 693
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Dr L Bygrave, Member
8 November 2018

The applicant, FCFY, is a citizen of the United Kingdom who arrived in Australia in 1972 when he was 14 months old. He held a class BF transitional (permanent) visa (visa) from 1 September 1994.
On 27 June 2017, the Department of Immigration and Border Protection (the Department) issued the applicant with a notice advising that his visa had been cancelled on 21 June 2017 under section 501(3A) of the Migration Act 1958 (Cth) (the Act). This decision was made on the basis that the applicant did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more and therefore had a “substantial criminal record” as defined in section 501(7) of the Act.
On 13 July 2017, the applicant submitted a request for revocation of the mandatory visa cancellation decision pursuant to section 501CA of the Act.
On 17 August 2018, a delegate of the Minister for Home Affairs (the Minister) decided not to revoke the visa cancellation decision and, on 27 August 2018, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of this decision.
The matter was heard in Sydney on 30 October 2018. The applicant did not have legal representation. He and his partner attended the hearing in person and gave evidence.
RELEVANT LEGISLATION AND POLICY
The power to revoke a visa cancellation
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied the person does not pass the character test because of the operation of sections 501(6) and 501(7).
Section 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by section 501(7). Section 501(7) of the Act provides that, for the purposes of the character test, a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.
Pursuant to section 501CA(4) of the Act, the Minister may revoke the original cancellation decision if the Minister is satisfied that the person passes the character test; or there is another reason why the original decision should be revoked. This is a discretionary power.
The applicant does not pass the character test in section 501(6) of the Act because his criminal record, which is set out in part in paragraphs 23 to 28 below, meets the statutory definition of a “substantial criminal record” in section 501(7) of the Act. I must therefore consider whether there is another reason to revoke the original cancellation decision.
The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500 of the Act. Under section 499(1), the Minister has given written directions as to the exercise of the power to review the decision. Section 499(2A) of the Act provides that these directions must be complied with. The relevant direction is Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA which commenced on 22 December 2014 (the Direction).
Direction No. 65
Paragraph 7 of the Direction sets out how the discretion is to be exercised. It states:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Under the heading of “General Guidance” at paragraph 6.2, the Direction states in part:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below [in paragraph 6.3] are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
In paragraph 6.3, the Minister sets out the principles that provide a framework to approach the task of deciding whether to revoke the decision to cancel a visa. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8 of the Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations. In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Part C of the Direction sets out the primary considerations the Tribunal must take into account in deciding whether to revoke the cancellation of the applicant’s visa as follows:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
Other considerations in Part C relevant to this matter are:
(a)the strength, nature and duration of ties to Australia; and
(b)the extent of impediments if removed.
EVIDENCE
The following facts are based on evidence before the Tribunal, which comprises:
·written statements and oral evidence from the applicant and his partner;
·written statements by family members and friends/associates; and
·records and documents relating to his criminal offences.
The applicant was born in 1971 in Greenwich, United Kingdom. He arrived in Australia with his parents in 1972 and has never returned to the United Kingdom.
The applicant described his childhood as a “nightmare” of being beaten, molested and threatened.[1] His mother married three times and he has three siblings and a further four step-siblings. Both the applicant’s step-fathers were alcoholics and his mother’s third husband required the children to steal; if they did not come home with anything they “got a flogging for it…if [they] got what he wanted [they] got rewarded”.[2]
[1] Exhibit G-G16, pp 104-105.
[2] Exhibit G-G16, p 105.
At the Tribunal hearing, the applicant said he started drinking alcohol when he was “very young” and consumed alcohol “daily” until about 2013-2014. He began taking drugs at the age of 11 or 12 years; he used cannabis “daily” and speed “when I could get it”. For the past 20 years, the applicant used methamphetamine (ice). He wrote in his statement that “while I was high I had no pain and no worries and was free from everything”.[3]
[3] Exhibit G-G16, p 106.
The applicant left home when he was 12 years old and lived on the streets. The applicant has relied on Centrelink payments since he was 18 years old except for intermittent “cash-in-hand” jobs. The applicant has also volunteered at Salvation Army stores and a local hotel that provides meals to homeless people from approximately 2013-2014 during periods when he has not been in prison.
The applicant has three children residing in Australia; a son aged 27 years, a daughter aged 26 years and a son who is 14 years old. He also has three grandchildren, aged eight years, two years and one year. The applicant’s extended family – eight aunts and uncles, cousins, siblings, step-siblings, nieces and nephews – reside in Australia. The applicant’s partner for the past eight years also resides in Australia with her six children and grandchildren. The applicant told the Tribunal he has no known family in the United Kingdom.
Criminal record
The applicant has an extensive criminal record dating from May 1987 to July 2017. The applicant’s criminal record, detailed in his National Police Certificate dated 9 April 2018, shows he has been found guilty of more than 100 separate offences.
The Courts first sentenced the applicant to periodic detention and imprisonment in 2000. The applicant was subsequently sentenced to imprisonment for 38 separate offences (some of which he served concurrently). These offences included:
·drive while disqualified from holding a licence – nine counts;
·obtain money etc by deception / dishonestly obtain property by deception – nine counts;
·fraudulent appropriation with no original fraudulent intent – five counts;
·steal property in dwelling – house <=$2000;
·common assault / assault occasioning actual bodily harm – four counts; and
·fail to appear in accordance with bail granted undertaking.[4]
[4] Exhibit G-G5, pp 29-38.
On 21 February 2017, the applicant appeared in the Wollongong Local Court and was convicted of the following:
·Offence: intimidate police officer in execution of duty w/o abh-t2. Court result: five months imprisonment.
·Offence: fail to appear in accordance with bail granted acknowledgement – 7 counts. Court results: s 10a conviction with no other penalty.
·Offence: have custody of an offensive implement in a public place. Court result: three months imprisonment, weapon forfeited to the crown.
·Offence: possess prohibited drug. Court result: s 10a conviction with no other penalty, drug to be destroyed.
·Offence: dishonestly obtain property by deception – 2 counts. Court results: 12 months imprisonment, non-parole period with conditions 9 months.
·Offence: larceny. Court result: 12 months imprisonment, non-parole period with conditions 9 months.
·Offence: shoplifting. Court result: 12 months imprisonment, non-parole period with conditions 9 months.[5]
[5] Exhibit G-G5, pp 30-31.
The applicant appealed the severity of the sentence to the Wollongong District Court and, on 4 July 2017, the appeal was dismissed.
The applicant’s Conviction, Sentences and Appeals report by the NSW Department of Corrective Services records:
·the aggregate sentence for these convictions by the Courts in 2017 was one year;
·in total, the applicant has spent more than five years and ten months in prison during the period from 2000 to 2017.[6]
[6] Exhibit G-G9, pp 56-59.
In addition to the applicant receiving sentences of imprisonment for driving offences, his driving record maintained by the NSW Transport Roads & Maritime Services shows he is disqualified from driving until 23 February 2056.[7]
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL AND OTHER SERIOUS CONDUCT
[7] Exhibit R5.
Paragraph 13.1 of the Direction outlines the Government’s commitment to protecting the Australian community from harm by non-citizens and requires that I consider:
(a)the nature and seriousness of the applicant’s conduct to date; and
(b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the applicant’s conduct to date
The applicant’s criminal record, which is summarised in paragraphs 23 to 28 above, shows he appeared before the Courts (adult and children’s) on 45 occasions from May 1987 to July 2017 and was convicted of more than 100 criminal offences. His record demonstrates an extensive and long-term pattern of repeated and serious offending from the age of 16 years.
The seriousness of the applicant’s criminal behaviour is indicated by the sentences imposed by the Courts, which include periods of imprisonment in relation to 38 convictions. Between 2000 and 2017, the applicant has been incarcerated for a total period of over five years and ten months.
The applicant’s criminal record contains repeated incidences of violence dating from May 1987, including convictions for assault occasioning actual bodily harm, assault, common assault, assault police, and contravening apprehended domestic violence order. The police reports for these convictions describe the applicant’s involvement in physical fights with people known to the applicant as well as strangers.
The sentencing remarks of the Courts provide some insight into the applicant’s offending. On 12 August 2009, the extract of adjudication by Magistrate Guy in the Wollongong Local Court noted in relation to three assaults by the applicant that:
…really there is not a great deal that can be said in terms or reasons why the defendant reacted in the way he did. There is a major problem as indicated in terms of alcohol, anger management, other issues.[8]
[8] Exhibit G-G6, p 40.
The applicant has also been convicted for fraudulent behaviour including obtaining money or property by deception, larceny and stealing. Magistrate McGowan described the applicant’s offending in the Wollongong Local Court on 21 February 2017 as follows:
There is a certain theme going through [the applicant’s] record; obtain money by deception, that went back a little while but it seems to be one thing after the other and if they were taken separately then in my view they would not be at the higher offending, it would not warrant a custodial sentence, but the Court when sentencing has to take into account the effect of these matters on the community. They have not just been one-off offences, it is one after the other and as I’ve said [the applicant] has shown no indication that things are going to be on the improve...[9]
[9] Exhibit G-G8, p 47.
I found the applicant’s evidence to the Tribunal was honest and raw. He mostly accepted the descriptions of his offences set out in the police reports and acknowledged his behaviour “was wrong”. The applicant declined to use either his upbringing or his addiction to alcohol and drugs as an excuse for his behaviour, but explained that his upbringing was “not to talk about things” and “not to involve the police”. He said he was “easily provoked” and much of his behaviour was due to being “off his guts” on alcohol and drugs.
On 7 March 2012, the (then) Department of Immigration and Citizenship advised the applicant in writing that his visa may be cancelled on character grounds under section 501 of the Act because of his offending. A further letter from the Department to the applicant on 21 May 2012, which stated his visa would not be cancelled on that occasion, also provided him with the following formal warning:
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.[10]
[10] Exhibit G-G15, p 99.
Despite this warning, the applicant continued to offend as shown by his five appearances before the Courts between 2013 and 2017.
The applicant told the Tribunal that, while he recalled receiving the warning from the Department in 2012, he has only understood the seriousness of his situation since he has been detained at the Villawood Immigration Detention Centre for the past ten months.
Considering the relevant factors set out in paragraph 13.1.1 of the Direction, I find that:
·The applicant’s offences include committing serious and violent offences.
·The applicant has committed offences against police officers.
·The applicant’s record of criminal offences shows he has been convicted of more than 100 offences in the adult and children’s Courts over a period of 30 years. He has been in prison for a period of approximately five years and ten months between 2000 and 2017.
·There has been a cumulative effect due to the applicant’s repeated offending and he has continued to offend despite repeated warnings from the judicial system.
·The applicant received a written warning from the Department in 2012 that any further offending would result in the cancellation of his visa.
·There is no evidence before the Tribunal that the applicant has ever provided false or misleading information to the Department.
I am satisfied that the frequency and cumulative effect of the applicant’s criminal offending is a matter of very serious concern. I find that the nature and seriousness of his offending weighs heavily against him.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
In a personal circumstances form dated 4 July 2017, the applicant stated:
I’ve had a drug problem most of my life. I’ve addressed this problem and been clean for 4 plus years. And unfortunately I relapsed…
I honestly think the likelihood of me reoffending is very very low. I’ve address my drug problem by doing N/A before the charges as I was out of jail 4 years and clean also for 4 years.[11]
[11] Exhibit G-G11, p 82

The applicant has had opportunities to participate in rehabilitation programs. Probation and Parole Service reports dated 2 July 2003 and 1 September 2004 stated the applicant failed to undertake “drug and alcohol programs and grief counselling as directed” by the Court and he did not complete “any treatment programs to address his offending behaviour”.[12]
[12] Exhibits R19 and R21.
In 2012, the applicant completed the “Getting SMART” and “Managing Emotions” programs. A subsequent report by the NSW Department of Corrective Services created on 6 July 2012 assessed the applicant’s risk of reoffending as “medium/high” for parole purposes.[13]
[13] Exhibit R25.
The applicant was also referred to and assessed by the MERIT program in 2016. However, a non-compliance report stated he attended one appointment and his “poor attendance and lack of communication are indicative of low motivation to make change”.[14]
[14] Exhibit R17.
At the Tribunal hearing, the applicant said he participated in the EQUIPS program for six months in 2017, although there is no written documentation that outlines his attendance at the program or any results/outcome.
The applicant submitted to the Tribunal he has not used drugs since February 2017. He acknowledged “triggers” for his drug and alcohol addictions, but stated that he intends to not relapse and reoffend.
I accept the applicant’s intention to continue his abstinence from drugs and alcohol. However, I must place minimal weight on this in view of his serious and frequent offending behaviour for more than 30 years, his limited participation in rehabilitation programs and counselling, and the lack of any objective evidence that demonstrates the applicant has reformed and is unlikely to relapse.
In considering the harm and potential risk to the Australian community if the applicant were to reoffend in the future, I am mindful of the nature and seriousness of his past criminal behaviour.
I cannot be satisfied on the basis of the evidence before the Tribunal that the applicant will not reoffend if he is released into the Australian community. On balance, I find that the protection of the Australian community weighs heavily against revoking the cancellation decision.
PRIMARY CONSIDERATION 2 – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 13.2(4) of the Direction sets out the factors that I must consider in relation to whether revoking the cancellation decision is, or is not, in the best interests of a child affected by the decision. Relevant to this factor are the nature and duration of the relationship, the extent to which the applicant is likely to play a positive parental role, the likely effect any separation would have on the child, and whether there are other persons who already fulfil a parental role.
The applicant has a son and three grandchildren under the age of 18 years. The applicant’s son, “G” was born in 2004 and currently resides with his mother (the applicant’s ex-partner). The applicant’s grandchildren were born in 2009, 2016 and 2017 and they reside with their mother (the applicant’s daughter). The applicant also has two nieces under the age of 18 years who reside with their mother.
The applicant’s evidence to the Tribunal was that his son “G” lived with him from March 2005 until the applicant went to prison in July 2009. “G” currently lives in Queensland with his mother (the applicant’s ex-partner). The applicant has not seen “G” since 2009 but speaks to him on the phone once or twice a week. I accept the applicant has a parental role in relation to his son “G” despite his physical absence for the past nine years.
The applicant has not met his youngest grandchild and has not seen his older grandchildren or nieces since he was incarcerated in 2017, although he maintains contact via telephone and social media. Each of these children resides with their mothers. There is no evidence before the Tribunal that the applicant plays a “parental” role in the lives of his grandchildren or his nieces, although I acknowledge the applicant’s submission that his family, including his nieces and grandchildren, is “close”.
While I find this primary consideration weighs in favour of the applicant, I do not place substantial weight on this consideration because the children also have parents and other family members present in their lives.
PRIMARY CONSIDERATION 3 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of the Direction provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Having regard to the principles set out in paragraph 6.3 of the Direction, set out in paragraph 13 above, I am mindful the Australian community anticipates a nuanced and balanced approach to considering the extent to which the applicant is a member of the Australian community even though he is not a citizen. The deliberation of Australian community expectations involves “bringing appropriate perspective and proportionality to bear in the assessment of risk.”[15] I therefore consider any positive contributions the applicant has made to society, such as employment, community activities and/or family relationships; and weigh this against his adverse and antisocial behaviour.
[15] Anaki and Minister for Immigration and Border Protection [2016] AATA 693, [89].
The applicant has resided in Australia since 1972. All his known family members reside in Australia including his aunts and uncles, cousins, siblings, step-siblings, children, partner, step-children and grandchildren.
The applicant had an extremely difficult upbringing, which resulted in him leaving his family home when he was 12 years old and finishing high school at year 8. The applicant has had occasional “cash-in-hand” jobs but mostly relied on Centrelink benefits for the past 30 years. He has undertaken some volunteer work assisting at the Salvation Army and serving meals to homeless people.
The applicant’s partner is an Australian citizen. She gave evidence to the Tribunal about their relationship for the past eight years. She said she suffers from generalised anxiety and post-traumatic stress disorder and relies heavily on the applicant for emotional support. She visits him at Villawood several times a week and speaks with him on the phone “all the time”. It was clear from the evidence of both the applicant and his partner that they have maintained a close and supportive relationship.
The applicant’s partner has six children, aged from 29 years to 11 years old, and four grandchildren. Her children do not reside with her but live close by, apart from her youngest child who lives with his father. The older son of the applicant’s partner, who is 20 years old, provided a written statement dated 15 September 2018. He referred to the applicant as “a father figure” to him and stated that if the applicant is deported, “it would be like losing another father [as he] has emotionally helped me through life and replaces the father that I don’t have”.[16]
[16] Exhibit A4.
The applicant also provided character references from his aunt, sister and a friend. The reference from his aunt confirmed the applicant’s statements about his childhood, noting he “grew into a life of crime and drugs”.[17] Statements from the applicant’s sister and friend confirm the applicant’s role in the lives of his family and friends as a “kind, big hearted, genuine man”.[18]
[17] Exhibit A2.
[18] Exhibit A1.
I also have regard to the applicant’s statement that he is a “product of Australia”.[19] In view of the nearly 47 years the applicant has lived in Australia, I accept that he and the life he has led has been shaped in part by his experiences within the Australian community.
[19] Exhibit G-G16, p 108.
There is no question the Australian community would have extensive empathy for the applicant due to the significant length of time he has lived in Australia and his substantial extended family in Australia, including children, with whom he has close relationships. However, this must be weighed against the applicant’s behaviour of committing serious and violent offences over a period of 30 years and his continued disregard for the Australian law and judicial system after he was warned in 2012 that this behaviour would result in the cancellation his visa.
In assessing all the relevant evidence against the requirements of the Direction, I find the applicant’s circumstances do not excuse his criminal offending. On balance, I am satisfied the third primary consideration counts against revoking the mandatory cancellation of the applicant’s visa.
OTHER RELEVANT CONSIDERATIONS IN DIRECTION NO. 65
Paragraph 14 of the Direction sets out other considerations that must be taken into account in deciding whether to revoke the visa cancellation. Relevant considerations in this matter are the strength, nature and duration of the applicant’s ties to Australia, and extent of impediments if he is removed.
There is no evidence before the Tribunal that other considerations including international non-refoulement obligations, the impact on Australian business interests and the impact on victims are relevant to these proceedings.
Strength, nature and duration of ties to Australia
In considering the strength, nature and duration of the applicant’s ties to Australia, paragraph 14.2(1) of the Direction provides that:
Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The applicant has lived in Australia for nearly 47 years. He arrived as a baby with his parents and has never returned to the United Kingdom. The applicant has demonstrated extensive family ties to Australia through his aunts and uncles, cousins, siblings and step-siblings, children, grandchildren, partner and step-children. He views Australia as “home”.
However, I must place less weight on this consideration because of the applicant’s limited positive contribution to the Australian community over the past 30 years.
I am satisfied that the applicant has strong family and social ties to Australia. I find consideration of the applicant’s ties to Australia weighs strongly in his favour.
Extent of impediments if the applicant is removed
The extent of impediments if the applicant is removed from Australia relies on his capacity to reside in the United Kingdom. Pursuant to paragraph 14.5 of the Direction, I must consider the applicant’s age and health, whether there are any substantial language or cultural barriers, and any available social, medical and/or economic support.
The applicant is 47 years old and told the Tribunal he has no health problems. There is no language or cultural barriers to the applicant returning to the United Kingdom and obtaining employment. I am satisfied that, as a citizen of the United Kingdom, the applicant would have access to a public health system and social welfare. However, I accept the applicant’s evidence that he knows no one in the United Kingdom and would therefore have no informal social or economic support networks to rely on. His partner’s evidence was that she could not financially afford to move to the United Kingdom nor leave her children and grandchildren in Australia, so the applicant’s removal from Australia would permanently separate them.
I find there are some impediments, in addition to being removed from his family in Australia, which would affect the applicant commencing a life in the United Kingdom. I am satisfied that this consideration weighs for revoking the decision to cancel the applicant’s visa.
CONCLUSION
The first and third primary considerations weigh heavily against the revocation of the cancellation decision. The second primary consideration weighs for the applicant but, for the reasons set out in paragraph 54 above, I place minimal weight on this consideration.
In regard to the other considerations, I find both the applicant’s ties to Australia and the impediments to his removal from Australia weigh for revoking the cancellation of the applicant’s visa.
Noting the requirement that primary considerations should be given greater weight than the other considerations, I am satisfied on balance of the primary and other considerations that it is not appropriate to revoke the decision to cancel the applicant’s visa.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..........................[sgd]..........................................
Associate
Dated: 8 November 2018

Date(s) of hearing: 30 October 2018

Applicant: In person

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 4184

8 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date(s) of hearing:	30 October 2018
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore Lawyers