FRDH and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 281

FRDH and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 281 (31 January 2023)
Division:GENERAL DIVISION
File Number(s): 2022/9411
Re:FRDH
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Dr N A Manetta
Date:31 January 2023
Date of written reasons: 1 March 2023
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.
..............[sgnd]..........................................................
Dr N A Manetta (Senior Member)
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – jurisdiction of Tribunal – error by delegate in applying section 501(3A) – materiality of alleged error – error held not to be material in this case – applicant does not satisfy character test – whether another reason for cancellation decision to be revoked – Direction No. 90 – overall seriousness of applicant’s offending – home invasion – violent crime – applicant affected by drug misuse – low risk of recidivism – interests of minor children – decision under review set aside and cancellation decision revoked
LEGISLATION
Migration Act 1958 (Cth)
CASES
Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590
Nathansonv Minister for Home Affairs [2022] HCA 26; 403 ALR 398
Pearson v Minister for Home Affairs [2022] FCAFC 203
Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCAFC 207; 273 FCR 105
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6; 289 FCR 256
Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Senior Member Dr N A Manetta
1 March 2023

After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish. These are the reasons I read out to the parties with relatively minor amendments.
This is an application by “FRDH”, a person whose name is subject to a confidentiality order and to whom I shall refer in these reasons as “the applicant”. The applicant seeks a review of a decision of the respondent’s delegate dated 8 November 2022, by which the delegate declined to revoke the cancellation of the applicant’s visa. The visa had been earlier cancelled under section 501(3A) of the Migration Act 1958 (“the Act”). The delegate who cancelled the visa decided first that the applicant had a “substantial criminal record” for the purposes of section 501(3A). This record was assessed to have arisen from an aggregate term of imprisonment of at least 12 months that the applicant had received. Furthermore, the applicant was serving part of this sentence on a full-time basis in gaol at the time of cancellation. For reasons that will become apparent, the delegate misdirected himself or herself in law in relying upon the aggregate sentence when applying section 501(3A). This misdirection in law must be taken to have occurred given the recent full Federal Court decision in Pearson v Minister for Home Affairs (“Pearson”).[1]
[1] [2022] FCAFC 203.
The applicant was notified of the cancellation decision and of his right to seek an internal review of the matter. The applicant was also notified that the basis of the decision was the aggregate sentence to which I have referred and the fact that the applicant was serving part of that sentence in gaol on a full-time basis. He was invited to make submissions in relation to the revocation of the cancellation decision, and he made timely submissions.
As a matter of law, the internal-review delegate had up to two questions to answer under section 501CA(4)(b) of the Act. The first was whether the applicant satisfied the so-called “character test” under the Act, and the second, which would only arise if the answer to the first question was “no”, was whether there was “another reason” for the cancellation decision to be revoked.
The delegate conducting the internal review decided that the applicant did not satisfy the character test and that there was not “another reason” for the cancellation decision to be revoked. In addressing this second question, the delegate applied Direction no. 90, issued under section 499 of the Act.[2]
[2] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
TRIBUNAL’S TASK
Hearing the matter afresh on the evidence adduced before me, I must address a number of questions in my review. First, I must address the question of my jurisdiction, given the error of law made by the original delegate who cancelled the decision. If I do not have jurisdiction, I should simply dismiss the application for want of jurisdiction. I would not have any power, however, to reinstate the applicant’s visa.
If I do have jurisdiction, I shall then have to address the same two questions addressed by the delegate conducting the internal review. Like the delegate, I shall be obliged to apply Direction no. 90.
I should also note certain procedural matters. This matter was listed for hearing in mid-January 2023. At the applicant’s request, however, the hearing was adjourned because he had only recently secured the services of lawyers. They needed time to prepare the case. Given the requirement in section 500(6L), obliging the Tribunal to make a decision within 84 days of the date on which the applicant was served with notice of the internal review delegate’s decision, it was necessary to conduct the hearing with a view to my delivering a decision on Tuesday, 31 January 2023 at the very latest. A hearing was scheduled as late as possible (namely, on Tuesday and Wednesday, 24 and 25 January) but it did not conclude on the Wednesday afternoon.
The next day, Thursday 26 January, was Australia day, and Friday 27 January was inconvenient for counsel. The hearing resumed, of necessity, on Monday 30 January 2023 and finally concluded at 8.30 pm that evening. I was required to prepare my decision and oral reasons overnight to be delivered on 31 January.
Finally, I note that it was the applicant who raised the question of the Tribunal’s jurisdiction. It is somewhat unusual for a person who invokes the Tribunal’s jurisdiction to question it. But it is in my opinion appropriate for parties ‒ indeed, incumbent upon them ‒ to raise all jurisdictional matters for the Tribunal’s consideration.
In this case, the applicant submitted that the Tribunal had no jurisdiction, while the respondent maintained that it did. Both parties made detailed oral submissions. The matter is undoubtedly a somewhat complicated one given the statutory scheme and various legal authorities.
SUMMARY OF CONCLUSION
Turning now to summarise the substance of my decision, I note my essential conclusions as follows: first, I have decided that I do have jurisdiction to consider the application for review; secondly, after applying Direction no. 90 and having weighed the various considerations, I am satisfied there is “another reason” for the cancellation decision to be revoked. My reasons for these conclusion follow.
JURISDICTION
I turn first to consider the question of jurisdiction. It is necessary to set out a number of preliminary matters. First, it was common ground before me that the applicant was sentenced to a “non-aggregate” (i.e., a single) 12-month term of imprisonment in 2017 in relation to his driving a motor vehicle during a period of disqualification. The sentence was suspended in the event. Secondly, this fact was referred to in the materials considered by the delegate who cancelled the visa. The material before the delegate contained certain sentencing remarks that related to later offending, but which mentioned, albeit briefly, this earlier suspended sentence.[3] Thirdly, at the time of the original decision maker’s decision, the applicant was serving an aggregate sentence of imprisonment in relation to multiple offences. The sentence was a long one: six years and three months.
[3] Exhibit R1, 54.
I turn now to certain authorities that are relevant to the question of jurisdiction. First, it was common ground between the parties that after Pearson the jurisdiction in section 501(3A) of the Act mandatorily to cancel a visa where a person has been sentenced to “a term” of imprisonment of 12 months or more is not enlivened by an aggregate term of 12 months or more. I accept that position.
Secondly, the full Federal Court in Ketjan v Assistant Minister for Immigration and Border Protection (“Ketjan”)[4] decided that in applying section 501(3A), a decision-maker is not limited to considering the term of imprisonment a visa-holder person is serving, but may consider past sentences of imprisonment. This includes suspended sentences. A past term of imprisonment of at least 12 months (excluding, of course, aggregate terms of imprisonment) will found jurisdiction to cancel a visa mandatorily under s 501(3A). That is, there need not be a relationship between the term of imprisonment being served for the purposes of paragraph (b) of section 501(3A) and the term of imprisonment which shows the person fails the character test in the requisite way under paragraph (a)(i) of section 501(3A).
[4] [2019] FCAFC 207; 273 FCR 105.
The third authority is XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“XJLR”).[5] This authority stands for the proposition that an invalid decision to cancel a visa under section 501(3A) of the Act is not a decision that can give rise in law to the jurisdiction in section 501CA(4)(b) to revoke the cancellation of a visa. It follows that if the delegate’s decision under section 501(3A) in this case was invalid, the internal-review delegate did not have jurisdiction and this Tribunal will also lack jurisdiction.
[5] [2022] FCAFC 6.
Whether a decision that breaches an essential condition governing the exercise of statutory power is invalid depends, ordinarily, on the materiality of the error in the circumstances of the particular case.   This proposition has been stated on a number of occasions in the High Court, beginning with Hossain v Minister for Immigration and Border Protection[6], and progressing through MZAPC v Minister for Immigration and Border Protection (“MZAPC”)[7] and Nathanson v Minister for Home Affairs (“Nathanson”)[8]. What “materiality” means in this context was first discussed by the High Court in MZAPC and most recently recapitulated in Nathanson. The following paragraphs from Nathanson summarise the position sufficiently for the purposes at
[6] [2018] HCA 34; 264 CLR 123.
[7] [2021] HCA 17; 390 ALR 590.
[8] [2022} HCA 26; 403 ALR 398.
hand:
30   In Hossain v Minister for Immigration and Border Protection, a majority comprising Kiefel CJ, Gageler and Keane JJ enunciated a common law principle of statutory interpretation. That principle is that a statute conferring decision-making authority is "ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance". It is well recognised that, generally speaking, legislation should be construed to discourage unnecessary litigation, to reduce wasting time and cost and to preserve the dignity of the law. And, in particular, in relation to the Act, this Court has declined to attribute to the legislation the impractical intention that an error in process, which cannot have affected the outcome of the process, requires that the process be repeated.
31   In MZAPC, a majority comprising Kiefel CJ, Gageler, Keane and Gleeson JJ explained the evolution of the contemporary understanding of jurisdictional error that supported that principle of interpretation. Their Honours further explained:
"The principle accommodates determination of the limits of decision-making authority conferred by statute to the reality that '[d]ecision-making is a function of the real world' by distinguishing the express and implied statutory conditions of the conferral from the statutory consequences of breach and by recognising that the legislature is not likely to have intended that a breach that occasions no 'practical injustice' will deprive a decision of statutory force."
32   As explained in MZAPC, the materiality of a breach requires consideration of "the basal factual question of how the decision that was in fact made was in fact made". This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with "as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined". The burden falls on the plaintiff to prove "on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition".
(All footnotes omitted)
As a result of the Federal Court’s decisions in Ketjan and Pearson, the delegate who cancelled the visa in this case was authorised to do so, but did so for the wrong reason. There is no doubt that the delegate correctly found that the applicant was serving part of a term of imprisonment full time in gaol and that, therefore, paragraph (b) of section 501(3A) of the Act was satisfied. In addressing paragraph (a)(i) of section 501(3A), however, the delegate misdirected himself or herself in law. The delegate was satisfied that the applicant’s aggregate sentence of six years and three months meant that the applicant had a qualifying substantial criminal record. That was clearly an error given Pearson. But it is also quite clear in my opinion that a hypothetical delegate instructed in the relevant legal principles (i.e., those flowing from Ketjan) and examining carefully the materials before him or her in this case, ought to have been satisfied on the basis of those materials that the applicant’s 12-month suspended sentence satisfied the threshold requirement in paragraph (a)(i) of section 501(3A).
The parties agreed that if the applicant in this case had not been sentenced to a suspended term of imprisonment in 2017, there would have been no sentence of imprisonment that enlivened the jurisdiction in section 501(3A). I agree with that joint position. The parties differed, however, over the significance of the earlier suspended sentence in so far as it bore on the question of the validity of the cancellation decision and my jurisdiction.
As I understood Ms Smith’s argument, the applicant contended that the error the delegate made was a material one and the decision reached by the delegate was therefore invalid. The error was material because it could not be safely concluded that the particular delegate who decided to cancel the visa in this case would have cancelled the visa if he or she had known that an aggregate sentence could not be used to found jurisdiction.
There is force in this contention so far as the facts are concerned. The particular delegate may not have been aware of Ketjan. There is no indication that the delegate relied upon the suspended sentence of 12 months in this case, or appreciated its significance, and that he or she would have done so if the legal insufficiency of the aggregate sentence to found jurisdiction had been raised. I am prepared to accept that as a matter of fact. It is also true that the normal test for materiality, as expressed by the High Court in MZAPC, requires one to consider whether the delegate might have decided the matter differently. This question involves deciding what the delegate might have done if the error had not been made.
But, in my opinion, that is not an exclusive test for determining materiality. In this case, as I have said, there were materials before the delegate that indicated the applicant had received a single sentence of 12 months in the past, albeit suspended. Had the delegate appreciated the significance of this sentence, he or she would have been obliged ‒ not merely permitted ‒ to cancel the applicant’s visa.
In my opinion, the fact that this particular delegate may not have appreciated the significance of the suspended sentence does not make the error the delegate made in this case material.It would be very strange to find that the cancellation decision was invalid even though it was one mandated by the Act on the materials before the delegate. I appreciate that the terminology in paragraph (a) of section 501(3A) refers to the delegate being “satisfied” of a state of affairs in question and not merely to an objective state of affairs. But in my opinion the fact that this delegate had materials before him or her referring to a suspended 12-month sentence is relevant to the question of the validity of the erroneous decision. In short, the delegate’s decision was, in fact, the correct one on the available materials although it was given for the wrong reason. That frequently happens, of course, in administrative decision-making. Again, I think it is important to bear in mind that section 501(3A) mandates cancellation of a visa if certain conditions are satisfied. It does not merely permit the delegate to exercise a discretion.
All in all, therefore, it seems to me that what this particular delegate might or might not have done in this case had he or she appreciated the legal significance of the 12-month sentence is irrelevant to the question of the validity of the cancellation decision that was made. Indeed, to make matters clear, if the delegate had recorded that he or she did not believe the suspended sentence was relevant, I would not have regarded the decision reached by the delegate as invalid. There would be no “practical injustice”: cf Nathanson at [32].[9] It would be a case where the delegate had reached the right conclusion and done what Parliament mandated be done although there were legal errors in the construction and application of the Act.
[9] Reproduced at paragraph [17] above.
The applicant put a further submission to me in the evening before my decision was to be delivered orally. The applicant submitted that the original cancellation decision was invalid because he had not received proper notification of the only correct legal basis for the decision; namely, the suspended sentence.
The parties indicated to me that they were not aware of legal authorities on this point. For my own part, and accepting that I have had very little time to research the matter, I would regard the two functions as separate. The first function is a decision-making one and it is whether to cancel the visa. I have already indicated that in the circumstances of this case the decision that was reached was not invalid because the delegate’s error was not material. The second decision involves a separate administrative act of notification. The relevant section (section 501C(3)) requires the Minister to give the person affected a written notice that sets out the original decision and particulars of what is called “the relevant information”. There is no doubt that the notice issued in this case set out the original decision and referred to the actual, if legally incorrect, basis for the cancellation decision. The particulars of “the relevant information” had also to be given, as I say. These are defined in section 501C(2)) to mean the information the Minister considers “would be the reason, or a part of the reason, for making the original decision”. It is not clear to me that this formulation requires the Minister in law to communicate the correct legal basis for the decision as opposed to the actual basis in fact for the decision reached.

Even if I assume that the notification process miscarried in law, I am not satisfied that this error entailed the consequence that the original cancellation decision, which I have found to be valid, was retroactively invalidated so to speak. If there has been an error, it may mean that the notification was invalid as a separate administrative act, but that would not of itself immediately make the original decision to cancel invalid, it seems to me.
Moreover, whatever consequences the Minister’s failure to refer to the legally correct basis for the decision entailed for the validity of the notification process, that failure does not necessarily deprive the Tribunal of jurisdiction. XJLR certainly decides that an invalid cancellation decision deprives the Tribunal of its jurisdiction; but it does not go further than that: it does not decide that an invalidity in the notification process means the Tribunal does not have jurisdiction in its de novo review.
Finally, the failure to mention the 12-month sentence in the notice could not have been a material error in any event: once again the question of materiality becomes important. I say this because the 12-month sentence was clearly one that enlivened the jurisdiction under section 501(3A)(a)(i), and it also meant the applicant could not pass the character test. That is clear law after Ketjan. The applicant could not have addressed anything to the delegate to persuade the delegate that he in fact passed the character test given this sentence: see section 501CA(4)(b)(i). Furthermore, the failure by the delegate to mention the 12-month sentence in the notice did not prevent the applicant from making submissions in relation to that sentence, or any other part of his criminal record, so far as it bore on the question in section 501CA(4)(b)(ii) (namely, whether there was another reason for the cancellation decision to be revoked). Accordingly¸ I do not believe the omission from the notice of the suspended sentence was a material error.
I further note and accept that my decision on jurisdiction may well be inconsistent with the recent decision of this Tribunal in RCLN v Minister for Immigration, Citizenship and Multicultural Affairs,[10] to which my attention was drawn. But it appears counsel in that case did not refer the Tribunal to the Federal Court’s decision in Ketjan. Had the attention of the Tribunal being drawn to that authority, I think it would not have made its observations at paragraphs [55]ff querying the Minister’s submission that earlier sentences of imprisonment are in fact relevant under section 501(3A). What the Tribunal might have finally done with that better information, I cannot be sure; but considering the matter afresh for myself, I have reached the conclusion that the error made by the delegate in this case should not be regarded as “material” given the relevance of the earlier 12-month suspended sentence, which required the cancellation of the applicant’s visa. As there has been no material error, my decision is that there is no invalidity in the cancellation decision.
[10] [2023] AATA 35.
Accordingly, I have concluded that I do have jurisdiction.
SUMMARY OF TRIBUNAL’S EXERCISE OF ITS REVIEW FUNCTION
I must consider the two questions I identified at [3] above, the second of which involves the application of Direction no. 90. So far as the performance of this part of my review is concerned, I note that the Tribunal reaches the correct or preferable decision on the evidence adduced before it. This means that I may set aside the decision under review, notwithstanding the absence of any error in the reasoning of the delegate, if that is the correct or preferable decision on the evidence adduced before me. Equally, I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons if that is the correct or preferable decision. That is, I do not merely review the delegate’s reasons for error but examine the matter afresh for myself.
WHETHER APPLICANT PASSES THE CHARACTER TEST
The first of the two questions is whether the applicant passes the character test. In my opinion, this question is properly answered by finding that the applicant does not satisfy the character test. The applicant is a person who has a substantial criminal record in that he has been sentenced in the past to a term of imprisonment of 12 months or more, albeit a suspended sentence.
WHETHER THERE IS ANOTHER REASON FOR THE CANCELLATION DECISION TO BE REVOKED
I turn now to consider whether there is another reason for the cancellation decision to be revoked. In this regard, I must apply Direction no. 90. In many earlier matters, I have extracted certain observations I made in Re Raiand Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)[11], and I do so again here:
[11] [2021] AATA 2119 at [32]ff.
1. I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).
1. I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.
1. First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.
1. I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.
1. Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight “generally” to primary considerations over other considerations.
I am required to consider a number of primary considerations. The first is the protection of the Australian community. I bear in mind, without repeating it, what appears in paragraph 8.1.1(1) of the Direction. By paragraph 8.1.2, I must consider the nature and seriousness of the applicant’s conduct to date, and the risk to the Australian community should the applicant engage in further criminal offending or other serious conduct.
In respect of the first matter, I am required to have regard to a number of matters set out in paragraphs (a) to (g). The applicant has most recently been sentenced in respect of a number of offences arising from a home invasion. I have the sentencing remarks before me. I accept them in their entirety. The offending concerned the invasion of a person’s home where a person is entitled to feel safe. The offending involved a serious assault upon the occupier of the property, and the use of imitation or toy instruments mistaken by the owner for real firearms. There was intimidation. There was a concerted plan executed by more than one person. There was some, although not particularly sophisticated, planning. I reject the applicant’s submission that the seriousness of the offending is reduced because the victim was a drug dealer who was supplying the applicant. The Court found that it was an aggravating factor that the applicant committed the offences while subject to two bonds. The Court also found that the applicant was using ice heavily at the time. That consideration was specifically addressed, and it constituted no excuse or reason for reducing the sentence. I note that the Court accepted that the applicant’s childhood and adolescent development were marked by significant emotional deprivation and physical abuse at the hands of his uncle as well as by abandonment by his parents. There is also reference to the applicant having limited intellectual and emotional resources. I note in particular that his moral culpability and the need for deterrence were reduced by reason of the combination of these factors.
The most recent offending involved a violent crime and is obviously very serious. There has also been a further violent crime committed in gaol. It consisted of the applicant giving “a hiding” to a convicted child sex offender who had been found guilty of raping his own daughter. I regard the vigilantism involved in this offending as very serious indeed.
The applicant arrogated to himself the right to punish his victim in his chosen way. He could not have known anything of the offending other than the bare fact of the commission of an offence. He could not have been sure that his victim was guilty of the offence: there are cases, after all, of wrongful convictions. He could have known nothing of the circumstances. He could not have known what mental problems this particular offender suffered from that might elucidate the offending. Importantly, he ignored the fact that the person had already been punished according to the standards of Australian law. He simply decided that physical abuse would be meted out to his victim in addition to the gaol sentence judged appropriate by the judicial system.
There are a number of other assaults in the criminal record that are required to be treated as very serious by paragraph (a). I also take into account the violent and intimidatory behaviour in which the applicant has been engaged whilst in gaol and immigration detention.
The applicant has a number of offences in relation to driving. I regard these offences as serious. Driving a motor vehicle whilst disqualified or driving an unregistered vehicle comprises arrogant and defiant behaviour. I do not believe, however, that driving while disqualified is to be equated with driving without the practical skills to drive (i.e. without ever having held a licence). Nevertheless, I do take into account that the applicant was addicted to ice for a lengthy period. No doubt he was operating his vehicle at points in time when he was affected by ice. There are offences in his record of refusing to provide oral fluid samples. These would seem to suggest that the applicant may have feared the detection of ice in his system. There is also an offence of failing to stop at a red light, which I take into account.
I must take into account the sentences imposed. In particular I note that the most recent sentence, an aggregate sentence of over six years, was a very long sentence. It marked out the seriousness of the offending in no uncertain terms.
I must have regard to the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness. There is certainly a frequency of offending in this case. There is also a trend of increasing seriousness in that the most recent offending was the most serious that has yet been engaged in. It was also engaged in while the applicant was on a bond, which is an aggravating feature. There has been very frequent offending in this case, and it gives rise to a cumulative effect which I am required to take into account, and I do so.
I must have regard to the risk to the Australian community. I bear in mind without repeating it what appears in paragraph 8.1.2 (1) of the Direction. Subparagraph (2) requires me to have regard to “cumulatively” two matters. First, I must have regard to the nature of the harm to individuals or the Australian community, should the applicant engage in further criminal or other serious conduct. Secondly, I must have regard to the likelihood of his so doing.
Clearly enough, the consequences for the Australian community of further violent assaults and home invasions are extremely serious. That is a very serious risk in my opinion. The nature of the harm to the Australian community should the applicant drive whilst affected by ice is also very serious. I do not underestimate the potential impact of road accidents on innocent road users. They can be life altering. It is completely unacceptable to drive whilst affected by alcohol or drugs of any sort. It is a highly antisocial activity. I accept that driving whilst disqualified does not amount as such to a dangerous activity threatening physical harm to the Australian community: it is nevertheless an antisocial activity displaying defiance of the legal system and requiring resources to be unnecessarily devoted to prosecuting this sort of conduct.
In my opinion, the likelihood of the applicant re-engaging in this conduct is dependent largely on his willingness to desist from further drug use. The applicant gave evidence that when he was on bail awaiting trial of his criminal offences, he complied faithfully and responsibly with his duties under the bail conditions. I accept that is a positive sign. There have been instances of misuse of suboxone (a prescription drug for which he did not have a prescription) in gaol and immigration detention; but I would say two things about those matters. First, there is not such a proven frequency of abuse of suboxone that I would conclude that the applicant has a dependency issue yet again in relation to a different drug. Secondly, whilst suboxone is a serious drug, it cannot be equated with ice, which is a drug that highly distorts reasoning processes, is extremely and quickly addictive, and disinhibits the individual substantially.
There are positive protective factors operating in the applicant’s favour. First, he would have employment to go to immediately on release from detention. That is a most important protective factor. He has also ceased contact with old associates that introduced him to ice. I accept that the applicant has strong feelings against those who introduced him to it. In fact, he blamed them for his troubles. That observation demonstrates a degree of insight into how poor associates can lead one astray. Of course, the applicant must also accept responsibility for his own decisions, whether or not they were influenced substantially by others, and whether or not he is a person easily led. Further insight has been achieved, and I accept that this applicant fully understands the consequences for him of returning to ice.
The applicant has plans to marry. I believe the applicant genuinely wishes to start a new married life with his fiancée. I accept that the relationship is highly unusual, given that it commenced whilst the applicant was in gaol and his fiancée has five children; but I am satisfied that the relationship is genuine, and I note that the contrary was not put to me by the respondent. Finally, the applicant has spent many years in gaol and immigration detention. If I ignore the months he spent on bail, the applicant has spent many years now either in gaol or immigration detention. The deprivation of liberty has had a rehabilitative effect on him. The applicant is well aware of where future offending will lead him. I also accept that the applicant wishes sincerely to re-establish one-on-one contact with his son, to whom I shall refer as “H”, and this will only be possible if the applicant remains in Australia. That, too, is a powerful incentive for him. Whilst the applicant’s offending history is long, it must also be said that it is concentrated over a relatively short period of time and whilst the applicant was influenced substantially by his ice dependence. I do not consider his offending has extended over so many years that it may be said that the applicant has entrenched criminal behaviours that are likely to resume if he is released into the community.
I accept that some of these protective factors have existed in the past. One may ask: what will be different now? The answer lies, in my opinion, in the lived experience of gaol and immigration detention. These are not mere hypotheticals for the applicant: gaol, coupled with immigration detention, can serve, in an appropriate case, to impress upon an applicant who is no longer drug-dependent how foolish it would be revert to drugs and crime. That has occurred in this case, in my opinion.
Accordingly, I accept that there is some risk of the applicant reoffending but I regard it as a low risk at this point in time. Whilst I accept that there was no contrition shown at sentencing, I believe the applicant now at least has insight into the consequences for himself and for those closest to him of further crime, even if he experiences no remorse as such.
I note that this risk assessment is to be considered “cumulatively” under the Direction, and I do so.
I must have regard to instances of family violence. The respondent quite properly conceded that the offending in this regard consisted of a punch to a cousin on one occasion that resulted in a criminal conviction for assault occasioning actual bodily harm, and a pushing/shoving of a female partner on the same occasion that did not lead to a criminal charge. I note that I am to take these matters into account; but the applicant’s offending in this regard is not especially serious.
The consideration of the best interests of minor children in Australia applies to the applicant’s biological child, H, and the applicant’s fiancée’s children. It seems to me that the applicant enjoys a reasonable prospect of re-establishing one-on-one contact with H given the evidence of the applicant’s fiancée that she has welcomed H into her home for overnight stays. There is also the most important fact of immediate financial support for H. Whilst it is true that the applicant might be able to support H from New Zealand, I bear in mind that the applicant may struggle, at least initially, to find work given his serious criminal record. On leaving immigration detention, he would be able to enter paid employment immediately and begin supporting H. That is a most important practical matter.
The interest has a minor has in maintaining a proper functioning relationship with both biological parents is important. I do not have information before me concerning what other paternal figures there might be in H’s life, but it remains the case that a biological father’s presence and financial support are important matters. I also place some weight on the interests of the applicant’s fiancée’s minor children. The applicant cannot be said at the present time to occupy a paternal role in relation to these children, but he has established a relationship with them, albeit remotely. The evidence suggests that he plans to undertake a paternal role in relation to them, which is important. I accept that he will also play a most stabilising role in their life, because they have been the victims and witnesses of domestic violence from their own biological father (who at the present time is in gaol). I accept that the applicant has committed himself to that role through his engagement to his fiancée and he is to be commended for it.

I must take into account the expectations of the Australian community under paragraph 8.4 of the Direction. These are, I note, set out in the Direction and I am not to assess them for myself. It is also the case that I am to apply the expectations whether or not the applicant poses a measurable risk of causing physical harm to the Australian community. There has undoubtedly been serious conduct in breach of the expectation that the applicant should be law-abiding as a noncitizen residing in Australia. As a norm, albeit not as an inflexible rule, the applicant should expect his fees are to be cancelled. I also accept that family violence is expressly mentioned in subparagraph (2)(a) as a matter giving rise to character concerns, although in this case it is somewhat attenuated; but in addition I would note that home invasions do give rise to serious character concerns. This home invasion must have been a very frightening, indeed terrifying, experience for the occupants of the house. Weapons, albeit imitation weapons, were brandished. That gives rise to a very serious character concern in my opinion which weighs substantially against the applicant.
Under paragraph 9 of the Direction, I am required to have regard to other considerations. These are listed non-exhaustively in the Direction. There are no international non-refoulement obligations for me to consider. I do not have any information before me concerning impact on victims and so I leave this to one side. I must have regard to the extent of impediments if removed. I accept that the applicant is familiar with New Zealand, its English language, and its culture. I accept that the social welfare systems are approximately equal. I accept that there would be an initial period of dislocation and there may be some difficulty in finding employment, particularly with the criminal background that the applicant has, but over time I believe the applicant would settle into life in New Zealand. I do not believe this factor has particularly significant weight.
So far as links to the Australian community are concerned, I accept here the interests of the applicant’s fiancée. It may well be that she would follow him to New Zealand, but it would not be an easy move and I accept that it might not occur. If it did occur, it would most likely involve some fracturing of her family. That is an important factor in my opinion, although the relationship is only of recent origin. Whilst close, the applicant and his fiancée have not spent any time together. They have communicated remotely, as Covid restrictions prevented visits and the applicant’s removal to Christmas Island has further impeded one-on-one contact. There are family members in Australia who will miss one-on-one contact with the applicant if he moves back to New Zealand. Their support letters have been filed with the Tribunal. There are no friendships as such to consider.
The applicant does have an interest in continuing his life in Australia, and in maintaining his marriage (on the assumption that the fiancée would not follow him to New Zealand), and, in particular, in developing a relationship with H. These are important matters to him and I give them weight. I do note, however, that the applicant began offending very soon after his arrival in Australia. That is an important matter because the applicant has not demonstrated on an extended basis his willingness to abide by Australian law and he has spent the greater part of his time in Australia in gaol or immigration detention.
WEIGHING THE CONSIDERATIONS
I turn now to weighing the considerations. This has proved to be a difficult matter. I accept the overall seriousness of the applicant’s offending. I fully accept the import of the community-expectations consideration. I accept that the home-invasion offending of which the applicant was found guilty, perpetrated in company and whilst the applicant was addicted to ice, was extremely serious and is required to be so treated under Direction no. 90. That said, there is a low risk of recidivism although a low risk does not mean “no risk”. In the circumstances of this case the interests of H loom large and do those of the applicant’s fiancée’s children although to a lesser extent. Children are often the unfortunate and innocent victims of the dysfunction of family life. H’s interests would be substantially advanced by his developing a proper relationship with his father, although I fully acknowledge that that relationship is not one that presently exists in terms of one-on-one contact. Financial support will be important to the child, and the prospect that the child will enjoy a better life because of that support is an important one for me to weigh, although I accept that the applicant may well be able to support H financially from New Zealand over time. I do accept that were there to be any return to drugs by the applicant, it would be better if the relationship ended now through deportation to New Zealand, but I have already found the risk of recidivism is low. The interests of the other children are in a prospective relationship that does not yet exist, but it does have the potential to benefit them substantially. The interest of the applicant’s fiancée is also important (although I acknowledge that it is not a primary consideration).
Whilst I must give weight cumulatively to the risk of reoffending (that is, cumulatively with the nature and seriousness of the harm), the fact that I have concluded that the risk of recidivism is low has been important in my weighing process. All in all, and appreciating that this is a decision very much on balance, I have decided that the correct or preferable decision on the evidence before me favours revocation of the cancellation decision.
FORMAL DECISION
Returning now to the language of section 501CA(4)(b)(ii) of the Act, I have concluded that there is another reason for the cancellation decision to be revoked. Accordingly, I shall set aside the decision under review and substitute a decision that the cancellation of applicant’s visa be revoked.
I certify that the preceding sixty (60)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
[sgnd]…………………………..
Associate
Dated: 1 March 2023

Date of hearing:

61.

62.     24, 25, 30 & 31 January 2023

63.

Advocate for the Applicant:

64.     Samantha Smith

65.     Sandpiper Immigration Lawyers

66.     Advocate for the Respondent:

67.     Oliver Morris

68.     Clayton Utz

69.