Grima and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 449
•2 January 2023
Grima and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 449 (2 January 2023)
Division:GENERAL DIVISION
File Number:2022/8507
Re:Liam George Grima
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Member A Julian-Armitage
Date of decision: 2 January 2023
Date of written reasons: 21 March 2023
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 10 October 2022 to not revoke the cancellation of the Applicant’s visa and substitutes a decision to revoke the mandatory cancellation of the Applicant’s visa.
..................[SGD]...................
Member A Julian-ArmitageCatchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – whether the Applicant passes the character test – whether there is another reason why the decision to cancel the Applicant’s visa should be revoked – consideration of Ministerial Direction No. 90 – substantial criminal record – decision under review set aside and substituted with a decision revoking the original visa cancellation.
Legislation
Administration Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Chand and The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 618
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Minister for Home Affairs v Buadromo (2018) FCR 320 PNLB and the Minister for Immigration and Border Protection [2018] AATA 162
SECONDARY MATERIAL
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
Member A Julian-Armitage
21 March 2023
INTRODUCTION AND BACKGROUND
The Applicant is a 27-year-old citizen of New Zealand (born in 1995). He first came to Australia on 8 August 2005 and since then has entered and departed Australia on multiple occasions until his latest arrival on 9 November 2016 [1] and has remained here ever since.
[1] G documents, G22, page 94.
The Applicant has compiled a not insignificant offending history over a period of 2 years in Australia. The relevant Check Results Report (“criminal history”) contained in the material furnished to the Tribunal details the Applicant’s history of offending which spans the period from 20 April 2018 to 25 March 2020.[2] The criminal history shows that the Applicant has committed a number offences dealt with judicially on separated sentencing occasions. This offending has seen the Applicant receive a varied ambit of sentences imposed including; community correction orders, fines, driving disqualifications and a term of imprisonment with a fixed non-parole period. The Applicant’s offending has included:[3]
[2] G documents,G5, Attachment A: National Criminal History report (dated 20.05.2021), pages 35-41.
[3] Ibid.
·Failure to appear in accordance with undertaking;
·Breach of bail;
·Unlawful use of a motor vehicle x 5;
·Possession of dangerous drugs x 4;
·Assault or Obstructing a police officer;
·Stealing x 2;
·Possession of property suspected of having been used in connection with commission of a drug offence;
·Common Assault;
·Contravene direction or requirement;
·Wilful damage of police property
On 20 December 2021, the Applicant was given notice that his Class TY Subclass 444 Special Category (Temporary) visa (‘visa’) had been mandatorily cancelled pursuant to
section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[4] The visa was mandatorily cancelled on the basis that the Applicant did not pass the character test as he had a substantial criminal record and had been sentenced to a term of imprisonment of more than twelve (12) months which he was serving on a full-time basis in a custodial institution.
[4] G documents, G23, Email from Department to applicant – Notice of decision not to revoke visa cancellation made under s 501(3A) of the Migration Act 1958 (Cth), pages 95-100.
On 22 December 2021, the Applicant made written representations to the Respondent seeking a revocation of the mandatory cancellation decision.[5] These representations were considered by a delegate of the Respondent who, on 10 October 2022, published the decision to deny the revocation sought.[6]
[5] G-documents, G12.
[6] G documents, G2.
On 14 October 2022, the Applicant made an application to this Tribunal for review of the delegate’s decision refusing to exercise the discretion to enliven the powers in
s 501CA(4) of the Act to revoke the mandatory cancellation of the Applicant’s visa.[7]
[7] G documents, G1, Application for review of a decision.
The hearing of this application proceeded before me on 20 and 21 December 2022. In this hearing the Applicant gave oral evidence to the Tribunal
The hearing also received written evidence which was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act to the delegate of the Respondent on 22 December 2021. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo in relation to the manner in which the balance of factors when determining whether there are grounds for the revocation of a cancellation of visa:[8]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[9]
[8] (2018) FCR 320.
[9] Ibid, at [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, at [31] (Collier J, with whom Logan and Murphy JJ agreed).
Issues
There are, therefore, two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c) of the Act, which provides that a person will have a substantial criminal record if:
“…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
;
…”
Consequently, failure of the character test arises as a matter of law.[10]
[10] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at [63].
On 25 March 2020, the Applicant was sentenced to a term of imprisonment of 18 months.[11] This sentence was in relation to dangerous operation of a vehicle. The Applicant’s criminal offending, as mentioned above, also includes other offences committed since he has resided in Australia.
[11] G documents, G6.
The 12 month term of imprisonment in the present case is sufficient to satisfy me, and I find, that the Applicant does not pass the character test as he was sentenced to imprisonment for a period of 12 months or more (s 501(6)(a) and s 501(7)(c) of the Act) in relation to his offending.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the 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” or “Direction 90”) has application.[12] The Direction provides guidance for decision-makers on how to exercise the discretion and relevantly states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[13]
[12] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
[13] Direction No 90, at para [6]. See also para [4(1)] which provides that a “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” pursuant to ss. 501 or 501CA of the Act (as the case may be). Summarised where appropriate, 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.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in and contributing to the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct, such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community), is so serious that even strong countervailing considerations may be insufficient in some circumstances; even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction, respectively, stipulate four “Primary Considerations”, and four “Other Considerations” by which I must be guided in making my decision.
The Primary Considerations I must take into account 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;
(4) expectations of the Australian community.”[14]
[14] Ibid, para [8].
The Other Considerations which, where relevant, I must take into account, include but are not limited to;
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.”[15]
[15] Ibid, para [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)one or more Primary Considerations may outweigh other Primary Considerations.
I will now turn to addressing the Primary and Other Considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction requires decision-makers to 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 this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. As mentioned above, the Applicant has complied a significant offending history in Australia which runs to 5 pages in length[16] which has utilised considerable law enforcement and judicial services in Australia (sentenced on 8 occasions).
[16] G5, pages 32 to 36.
I will now apply the relevant sub-paragraphs of Paragraph 8.1.1(1) of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.
Paragraph 8.1.1(1)(a)(i)
This sub-paragraph looks for the commission of violent and/or sexual crimes. If an Applicant has committed such offences, this sub-paragraph deems that they are to be viewed “very seriously” by the Australian Government and the Australian community.
On 10 June 2019, the Applicant was convicted on 2 charges of ‘Assault or Obstruct Police”. The Queensland Police Service Court Brief shows the only 1 of the charges was an assault, the other being an obstruct.[17] He was again convicted on 25 March 2020 of ‘Common Assault’. The convictions relating to Police will be, in my view, more appropriately dealt with when dealing with sub-paragraph 8.1.1(b)(ii).
[17] S3, page 11.
In relation to the common assault conviction, the facts of the crime as stated by the sentencing Judge,[18] were that in the course of stealing items from a store, when the manager “attempted to stop you, grabbing at the trolley…you punched him to the face: a very serious example of common assault”. Given the circumstances, I find the commission of this offence as unquestionably an offence that compulsorily is to be view as “very serious” for the purposes of assessing the nature and seriousness of the Applicant’s conduct.
[18] G8, page 49 [36].
Paragraph 8.1.1(1)(a)(ii)
This subparagraph looks for the commission of crimes of a violent nature against women or children, regardless of the sentence imposed. It is worth noting that a
Domestic Violence Order is not considered a criminal offence unless the Order is breached. However, for the sake of completion, I will deal with the Order and the circumstances surrounding it here, despite there not being any breaches of the Order over the 5 years duration concluding on 10 January 2023.Whilst ordinarily I would deal with the issues surrounding the Domestic Violence Order (effective from 11 January 2018 to 10 January 2023)[19] when dealing with sub-paragraph 8.1.1(1)(a)(iii), however, the Applicant’s evidence is that, whilst he was intimate with the aggrieved, they were not in a de facto relationship and only shared a residence for around 1 month.[20]
[19] S1.
[20] Transcript, page 111, lines 27-34.
The material in relation to this Order, and the Applicant’s oral evidence, is that the aggrieved person, a female who had been residing with the Applicant for a short period, offered to drive him to a certain location as previously agreed between them however the Applicant changed his mind mid-journey and asked to be taken to a different location. This change in drop-off location cause an argument between the Applicant and the aggrieved which led the Applicant to lose his temper. He got out of the car and hit and kicked parts of the vehicle causing damage to it.[21] His evidence was that he did not have any money on him so he could not get to where he wanted to go.[22] From the evidence he did not strike the aggrieved but his actions, due to his loss of composure, caused her to be fearful. This behaviour was violent in nature and is viewed as ”very serious”.
[21] S3 page, 11.
[22] Transcript, page 112, lines 9-10.
Paragraph 8.1.1(1)(a)(iii)
This sub-paragraph refers to acts of family violence contained in an Applicant’s criminal history. If such offending is contained in the Applicant’s history, it is viewed “very seriously” by the Australian Government and the Australian Community.
For the reasons mentioned above, I have dealt with the Domestic Violence Order in sub-paragraph 8.1.1(a)(ii) above.
Paragraph 8.1.1(1)(b)
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
As mentioned above and relevant to this sub-paragraph, the Applicant’s criminal history contains 2 convictions for “Assault of Obstruct Police” for which he was sentenced to
3 months and 1 month imprisonment respectively. These offences fall squarely within the provisions of sub-paragraph 8.1.1(1)(b)(ii) and there can be no question that the Applicant’s conduct resulting in the convicts are for crimes committed against “government representatives or officials in the performance of their duties”. Therefore, in the circumstances I find that the nature of this conduct has been serious.
Paragraph 8.1.1(1)(c)
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction precludes me from taking into account sentences imposed on the Applicant for any violent offences against women,[23] any acts of family violence[24] and any sentences received as a result of conduct causing a person to enter into (or become a party) to a forced marriage.[25] Therefore, any consideration in relation to the Domestic Violence Order is precluded for the purposes of this sub-paragraph.
[23] Paragraph 8.1.1(1)(a)(ii).
[24] Paragraph 8.1.1(1)(a)(iii).
[25] Paragraph 8.1.1(1)(b)(i).
The Applicant has received several and varied sentences throughout his criminal history for non-precluded offending which attracts the operation of this sub-paragraph. He has received a range of sentences from licence disqualifications, suspended terms of imprisonment with convictions recorded to terms of imprisonment spending actual time in custody.[26]
[26] G5, pages 32-36.
The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.[27] It is indicative of the nature of the Applicant’s offending that he has received a number of custodial sentences which are indicative of both the nature and extent of his unlawful conduct.
[27] PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at para [20].
Therefore, it is appropriate to find, given the sentences imposed on the Applicant, that his unlawful conduct in Australia has been serious in nature.
Paragraph 8.1.1(1)(d)
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
It is evident from the Applicant’s criminal history that his offending has been frequent in nature. He has committed some 35 offences, breached orders and bail and failed to appear in relation to some of those offences from March 2018 to October 2019. These offences were committed over a period of some 19 months which is undeniably frequent.
In assessing whether the Applicant’s criminal activities follow a pattern of increased seriousness throughout the period of offending, the Applicant’s criminal history shows a steady pattern of drug offences which include possession of a dangerous drug and trafficking in dangerous drugs with the commission of these offences taking place in January 2018 with similar offences being committed throughout the period of his offending. These drug offences appear to underpin the Applicant’s other genre of offending which include stealing, unlawful possession of a weapon, common assault, assault or obstruct Police and the motor vehicle offences of unlawful use of motor vehicle and dangerous operation of a motor vehicle.
I am satisfied that the offending has been frequent in nature and that although the offending has increased in seriousness giving rise to the sentence in relation to the dangerous operation of a vehicle conviction and sentence.
Paragraph 8.1.1(1)(e)
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires an examination of the cumulative effect of an Applicant’s repeated offending. It is clear to me that the Applicant’s offences are demonstrative of several cumulative effects. At the outset, the offending shows a blatant lack of ability to comply with lawful direction as is evidenced by his offences against the Police Officers, contravene instructions and breach of orders leading to suspended sentences being fully invoked.
Furthermore, it is clear that the Applicant’s sentencing regime has had no deterrent effect as he has steadfastly continued to offend with increases of severity in sentencing and invoking the suspended sentences. It is evident from both the criminal history and the evidence of the Applicant and his witnesses that he has struggled with a burdensome mental health issue which has led him to use illicit drugs commencing in New Zealand and continuing here in Australia. It is evident that his use of drugs has left him devoid of any moral or ethical consideration for members of the community. The Applicant’s criminal history is peppered with this genre of offences which may well have been that cause root of his offending including the offences in relation to motor vehicles.
As mentioned above, the Applicant has offended and been dealt with judicially for over some 35 offences during his time in Australia which must lead to a finding that there are clear cumulative effects of his repeated offending which when looked at holistically leads me to find that his offending in Australia is serious in nature.
Paragraph 8.1.1(1)(f)
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction concerns itself with whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence to support a finding in respect to this sub-paragraph.
Paragraph 8.1.1(1)(g)
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
There is nothing before me to indicate that the Applicant has previously been either warned that his visa was at risk of being mandatorily cancelled or actually been cancelled.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant sub-paragraphs contained in paragraph 8.1.1(1) of the Direction. Taking into account the particular applicability to the relevant sub-paragraphs, I am of the view that the totality of the Applicant’s unlawful conduct can be readily characterised as “serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, the Tribunal 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 of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, we must have regard to the three following factors on a cumulative basis:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
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 the 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 harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. I am satisfied that if the Applicant were to re-offend in any of the offending genres contained in his criminal history, individuals and/or the Australian community could experience physical, psychological and material damage.
If the Applicant were to operate a motor vehicle on an Australian carriageway, in the fashion that gave rise to his convictions, it is reasonable to come to the conclusion that users of Australian carriageways would be exposed to risk. In addition, if he were to again engage in stealing offences of the kind that he has in the past, again it is reasonable to conclude that his victims would be adversely affected physically ,psychologically and materially. Were he to commit offences involving prohibited weapons, it is unquestionable that harm to persons in the community is likely to occur.
Were the Applicant to disregard lawful requirements made of him from Police or other sources that compel member of the Australian community to abide by, he would further drain the resources of the judicial regime.
Importantly, were he to again become involved in the unlawful supply and/or possession of illicit drugs, it is more than conceivable that harm would beset the users of such drugs and their families as well as add considerably to the Australian public health system.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (Sub-paragraph 8.1.2(2)(b) of the Direction)
(i) Information and evidence on the risk of the Applicant reoffending
The Applicant’s claims to be extremely remorseful for his unlawful conduct in Australia and stated throughout the hearing of his application that he has undertaken a number of course and plans to engage in whatever it takes to treat his mental health and addiction issues. In this respect, he claims he has taken out private health insurance so that he is in a position to meet the costs of treatment. He, and his family, have given evidence of the plans they have going forward in order to eliminate any risk of recidivism he may represent.
It is the Applicant’s position that his offending is attributable to Post Traumatic Stress Disorder (PTSD) as a result of a brutal attack on him in New Zealand when he was attacked by a person with a baseball bat leaving him serious injuries including a broken arm, broken jaw, fractured eye sockets and fractured cheekbone requiring a lengthy hospitalisation period.[28] Apart from PTSD, the Applicant also developed depression and anxiety as a direct result and used illicit drugs to numb the effects. It is worth noting that the Respondent accepts that the Applicant suffers from these conditions.[29] The Applicant’s evidence is that he turned to methamphetamine in order to cope with his various mental health conditions which is not contested by the Respondent.
[28] G15, page 69.
[29] Exhibit 3, Respondent’s SFIC, [32]-[33].
Furthermore, the Applicant addressed these conditions in weekly session with a psychiatrist whilst in custody. He has also undertaken an Alcohol and Drug Awareness course and an Anger Management course and is an enrolled member of Narcotics Anonymous.[30] In preparation for release, he has also undertaken a Positive Parenting Program and investigated rehabilitations courses that would be suitable if he were to be released into the community.[31] The Applicant and his sister both gave oral evidence of a rehabilitation courses and groups that they have looked into and that it has been arranged that he will attend the “Amend Movement” in house which is run by a psychologist and designed to deal with the specific issues the Applicant requires assistance with.[32]
Evidence of rehabilitation achieved by the Applicant by the time of this decision
[30] Exhibit 8.
[31] Exhibit 9.
[32] G15, page 73 & G20 page 81
In addition to the courses undertaken by the Applicant, and his future plans, it is appropriate to mention the string of oral evidence from both him and his family addressing how the family felt it is well equipped to provide him with all the support he will require on his rehabilitation journey. As previously mentioned, his sister is very involved in providing support with his rehabilitation. His father also gave evidence of his commitment, and that of the entire family, to ensure that the Applicant is able to start work as soon as he is able to in the industry that he did his apprenticeship/training in (as a glazier). The family members who provided evidence, all stated that they have seen a vast change in the Applicant as a result of his self-help and remorse for his past and that they are committed to help him going forward. There was evidence from the Applicant’s father when the Applicant was first released after a term of imprisonment that he realised he should have assisted his son and “could have done more” to help him stay on the right path but didn’t know how to help his son. He went on to state that he is confident that he informed himself on what he needs to do and now knows how to support the Applicant’s rehabilitation and integration back into the workforce and the community.
(iii) Conclusions about risk
Despite the Applicant’s not inconsiderable past criminal activities and the lack of professional clinical evidence in relation to recidivism, I am satisfied that the Applicant has insight into the triggers that have caused his offending, in the main, by his use of illicit drugs to deal with mental health issues and has sought external assistance to overcome those triggers leading to offending. I am satisfied that he is remorseful and committed to a better future with a low-moderate level of risk of re-offending.
Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?
Paragraph 8.1.2(2)(c) provides:
“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.”
As this matter does not involve the refusal of a visa but an application for the revocation of a mandatory cancellation of the Applicant’s visa, this sub-paragraph is not relevant in the determination of this application.
Conclusion: Primary Consideration 1
With respect to the weight attributable to Primary Consideration 1:
(a)I find that the nature and seriousness of the Applicant’s criminal conduct has been “serious”;
(b)I find that should the Applicant re-offend, the nature of the harm to individuals or the Australian community would be serious and would involve physical, psychological and material harm to both individuals and/or the community as a whole;
(c)I find the Applicant’s recidivist risk of embarking on further offending pr serious conduct as low-moderate in consideration of the evidence before me from the Applicant and all his support network.
In examination and analysis of the material before me, I am led to the conclusion that this Primary Consideration 1 carries some, but not determinative, level of weight against revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
As mentioned above, I do not consider the incident in relation to the Domestic Violence Order against the Applicant as one that should be considered within the parameters of this consideration for the reasons given earlier in these written reasons in paragraphs [29]-[31].
Conclusion: Primary Consideration 2
In the circumstances, I find that Primary Consideration 2 is not relevant to this matter and therefore is neutral in weight.
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 as to whether non-revocation under section 501CA is, or is not, in the best interests of a child who would be affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively, contain further stipulations and provisions. The former provides that for their interests to be considered, the relevant child (or children) must be under eighteen years of age at the time when a decision, about whether 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.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of minor children. Those factors relevantly comprise for present purposes:
a) 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);
b) 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;
c)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;
d) 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;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) 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; and
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Identification of the relevant minor children
Prior to an application of the factors speaking to the allocation of weight to this Primary Consideration 3, it is necessary to identify the minor children relevant to this element of the consideration.
On the evidence, the Applicant is the stepfather of his partner’s daughter. He also has a toddler nephew who is his sister’s son and a toddler niece, his brother’s daughter.
The Applicant’s evidence is that he has known his partner for over 10 years and been in a de facto relationship with her for the past 4 years during which he has been in a parental role with his minor stepdaughter as her biological father is not in her life. He is very close to her and wants to be a good father figure. The Applicant provides this child, and her mother with financial and emotional support.[33] In addition, the Applicant states that if he released into the Australian community, he will live with his sister and nephew and wants to be ”in his life and my brother’s baby’s life and be a good role model for them”. The evidence is Applicant has received regular weekly visits from his family when he was in custody and when he was transferred to the Detention Centre. He was able to bond with his nephew during the time he has been in Detention as the child is regularly taken on visits to see him.
,[33] G15, page 74
The Respondent concedes that the minor stepdaughter will be affected should the Applicant by required to leave Australia.[34] I find that this is particularly so as the oral evidence adduced that the Applicant’s partner has been diagnosed with cancer.[35] Therefore, the Applicant’s stepdaughter will, conceivably, require more than the usual support and assistance from the Applicant in future.
Conclusion: Primary Consideration 3
[34] Exhibit 3, [47].
[35] Transcript, page 109, lines 37-47.
I have taken into account the relevant elements and factors in paragraph 8.3 of the Direction and having regards to the cumulative strength of the applicable evidence, I find that this Primary Consideration 3 weighs very heavily in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
It is clear from the Direction that the expectations of the Australian community apply regardless of whether a non-citizen poses a measurable risk of causing harm. The Australian community expects non-citizens to obey Australian laws while in Australia. [36] The Direction provides:-
“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 governments views as articulated , without independently assessing the community’s expectations in the particular case.[37]
[36] Paragraph 8.4(3) Direction 90.
[37]With respect to the requirements of paragraph 8.4(1) of the Direction, the expectations can be expressed as:
·the Australian community expects that non-citizens will obey the Australian laws while in Australia; and
·where a non-citizen has either breached the above expectation or there is an unacceptable risk that the non-citizen will breach the above expectation;
the Australian Community would then expect the Australian government to not allow the non-citizen to enter or remain in Australia.
It follows that, given the nature of the Applicant’s offending, the Australian community’s expectation, in the ordinary course, would be that the Australian Government to not allow the Applicant to remain in Australia.
Furthermore, paragraph 8.4(2) 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 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.
I have determined above that the incident giving rise to the Domestic Violence Order is not characterise as “family violence” and provided my reason which I will not repeat here.
For the sake of completion, there is nothing, on the evidence adduced in this matter, to suggest that the Applicant has been involved in any of the types of offences or conduct as envisaged in (b), (c), (e), or (f).
In relation to the types of offences contained in (d), the Applicant has been convicted of “Assault or Obstruct Police” which occurred whilst in the performance of their official duties.[38] Consequently, these offences enliven the provisions of this sub-paragraph.
[38] G5, page 35.
Finally, the issue remaining to be determined is whether there are any factors which modify or affect the Australian community’s expectations. This determination is assisted by paragraphs 5.2(4) and (5) of the Direction which provides:
(1)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(2)the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have participated in or contributing to the Australian community for only a short period of time;
(3)Australia may afford a higher level of tolerance of criminal or serious conduct by non-citizens who have lived in Australia most of their lives; and
(4)the nature of the non-citizen’s conduct or harm that would be caused if the conduct were to be repeated may be so serious that even strong counter balancing considerations may be insufficient to justify a positive visa outcome to the non-citizen.
In relation to the provisions applicable in (1) above, as “limited stay” visas are not defined in the Act, in the ordinary meaning of these words, it is not sensible for the reference to encapsulate permanent residence visas as the holders of those visas have a right to remain in Australia without time limitations. Therefore, and as the Applicant was the holder of a visa that allowed him to remain in Australia indefinitely this principle does not apply to him.
Dealing with the matters in (2), the evidence before me is that the Applicant undertook a
5 year “apprenticeship” as a glazier and worked in that field. He also worked for the department store Target for a period of 1.5 years. The latter employer has provided the Applicant with a reference dated 15 July 2022 stating that Target would happily re-employ him.[39] His involvement in paid work and a steady employment history speaks favourably about him. His participation in and contribution to the Australian community cannot be view as short given his age. Hence, the principles in paragraph 5.2(4 ) accommodate a higher level of tolerance.
[39] G15, page 70; G17, page 78.
In relation to the consideration in (3) above, the Applicant has lived in Australia on more less permanent basis since he was 21 years of age and has spent a third of his life here and the vast majority of his adulthood in Australia. Therefore, the Australian community has a higher than usual tolerance of criminal or other serious conduct by the Applicant.
In respect to the principle in (4), I take guidance, and agree with the position of Tavoularis SM in Chand and The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[40] In determining the applicability of the principles in (4) above, Senior Member Tavoularis stated:
“I am not of the view that the balancing exercise between(on the one hand) the harm that would be caused by him re-offending and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the Applicant’s conduct and resulting harm from that conduct (thus far) has been of sufficient magnitude such as to dispel any applicable countervailing considerations.”
[40] [2022] AATA 618 (25 March 2022 ).
Thus, I am of the view that the Australian community’s expectations are modified to the extent that the community’s tolerance of Applicant’s criminal conduct is higher than usual tolerance of his criminal conduct. Regardless of this tolerance, given the Applicant’s offences against Police in the course of their duty and the breaches of the community’s expectations, my view is that the community expects the government to cancel his visa.[41]
[41] Direction 90, principle 5.2(3).
Conclusion: Primary Consideration 4
Primary Consideration 4 carries a certain, but not determinative, level of weight against revocation of the cancellation of the Applicant’s visa.
Other Considerations
Paragraph 9 of the Direction non-exhaustively lists Other Consideration that are necessary to determine. I will consider each of the four stipulated sub-paragraphs in turn.
Other Consideration (a): International non-refoulement obligations
From the evidence before me in both written and oral form, the Applicant’s possible removal to New Zealand would not breach Australia’s international non-refoulment obligations. Therefore, this consideration is not relevant in this case.
Other Consideration (b): Extent of Impediments if Removed
Paragraph 9.2 of Direction requires 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.
As mentioned previously, the Applicant is 27, almost 28 years old and suffers from longstanding mental health and physical (addiction to Methamphetamine). These conditions began when he was in high school and was attacked by a person armed with a baseball bat. As a result of this attack, the Applicant suffered a broken jaw, two fractured eye sockets, a fractured cheekbone and a fractured arm in 2 places. He was hospitalised for months requiring a full-face reconstruction amongst other treatment. This assault also inflicted serious mental health issue on the Applicant from which he claims he has not recovered fully.[42]
[42] G15, pages 69-70.
It is not arguable that the Applicant would be faced with any cultural and linguistic barriers in New Zealand as these aspects are similar to those of Australia. Hence, I find that the Applicant would not face any discernible barriers in terms of language or culture that would impede his re-settlement in New Zealand.
Despite there being no substantial impediment in relation to the Applicant’s age, and New Zealand’s language and culture, I have heard evidence, both oral and written, to the effect that the Applicant requires and relies on a great deal of support and assistance from his immediate family, mainly his parents and sister in order to ensure that he is able to heal himself mentally and physically. His family members gave evidence that the last time the Applicant was realised from custody, no-one in his family knew how to assist him in order to keep him on the right path. His father stated that he was embarrassed by his son’s offending and would stay in his car in the carpark when his wife would visit the Applicant.
The Applicant’s evidence in relation to his previous release was that not only did the family not know what to do to assist him but he himself did not reach out for any support or assistance. There is a totally different situation in play on this occasion. The family gave evidence of their research into how best they are able to support the Applicant and their total commitment to doing so. The Applicant’s sister has researched appropriate course for him and the family has agreed as a unit that he will attend an in-house community health group called “Amend Movement” over a 6 week period. In addition to this course, his family have made contact with a psychologist who has agreed to take him on as a patient. The Applicant, on his own volution, joined Narcotics Anonymous when he was taken to detention and has attended meeting with regularity since joining.[43]
[43] G15, pages 69-75.
The Applicant claims to not have any social support in New Zealand other than people who he no longer wants to associate with as they are part of his past who are “still criminals”.[44] It is without doubt that New Zealand would avail the Applicant with medical and economic support of a similar services and the standard as those that are enjoyed in Australia. All things being equal, I am of the view that the support of his family is a crucial component of the Applicant’s road to recovery, that would not be available to him in New Zealand.
[44] G15, penultimate line of page 74.
In the circumstances and having regard to my findings in relation to the components of this Other Consideration of the Extent of Impediments if Removed. I allocate a heavy level of weight in favour of revoking the cancellation of the Applicant’s visa.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a s 501 or 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 being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There has not been any evidence adduced in relation to the Applicant’s victims or their family members. Therefore, no weight is allocated to this Other Consideration.
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I consider each in turn.
The strength, nature, and duration of ties to Australia
With reference to the first part of this Other Consideration, I will consider three elements. Firstly, I will assess the impact of a refusal decision on the Applicant’s, “immediate family members”, where those people have a right to remain in Australia indefinitely. Secondly, I will assess the impact of a refusal decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Thirdly, I will assess the strength, nature and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I address each component in turn.
Impact of non-revocation on the Applicant’s immediate family
This initial exercise requires me to identify the Applicant’s immediate family in Australia which consists of his mother and father, a sister and brother, a niece and nephew and his de facto partner and his stepdaughter. He also has an aunt and uncle in Australia and cousins.
The evidence from the Applicant’s family and the Applicant is that they are a close-knit family who are desperate to keep the Applicant amongst them. They have all stated their willingness to do anything needed to ensure that the Applicant is able to remain in Australia and have all individually given evidence of the devastation they would encounter should he be required to leave Australia.
The Applicant’s partner , Nicole de Vries, an Australian citizen, provided a written statement detailing the nature of her relationship with the Applicant and how reliant she is on him for support due to her lymphoma cancer.[45] The Applicant’s evidence mirrored that of Ms de Vries in respect to the lack of other persons who could provide the assistance and support she requires as a result of her illness.
[45] Exhibit 4, Letters of Support, pages 5-10.
Given the evidence and circumstances surrounding the Applicant’s family, including his partner and stepdaughter, I am persuaded that the strength, nature and duration of ties to these immediate family members in Australia carries a heavy level of weight in favour of revocation. This finding is made against the understanding that each of these family members have a right to remain in Australia indefinitely.
Strength, nature, and duration of ‘other ties” – length of residence
There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a child.
As I have mentioned previously, the Applicant has been in Australia since he was 21 years of age and arrived in Australia on a permanent basis in 2016. He has now spent a third of his life in Australia.
I will now refer to the two tempering sub-elements in paragraph 9.4.1(2)(a) of Direction which requires me to allocate less weight if the Applicant began offending soon after his arrival in Australia. It appears from his criminal history that the Applicant’s first conviction in Australia took place some 18 months after his arrival. A period of 18 months after arrival, in my view, should not be considered to be “soon after arriving in Australia”. Therefore, I provide a neutral weight to this first of the two tempering elements.
The second of the two tempering elements require me to assess the extent of the Applicant’s contribution to the Australian community. In this regard, I find that he has made contributions through employment which would have required him to pay taxation on his income and in that fashion, made contributions to the community.
The second of the two tempering sub-elements is, therefore, assessed in favour of the Applicant attracting more weight to this Other Consideration for the purpose of revocation of his cancellation.
Strength, nature, and duration of “other ties” – family and other social links
The Applicant has made mention of an aunt and uncle in Australia. There is a statement provided by a cousin, Josh Toa. However, I do not have sufficient evidence to consider a finding in relation to “other ties” and how they would be impacted by a non-revocation decision.
Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. In the present circumstance, I find that this component of Other Consideration (d) has no relevance in this case.
Weight allocable to Other Consideration (d): links to the Australian community
In relation to the first part of this Other Consideration, namely the strength, nature and duration of the Applicant’s ties to Australia, and having analysed its three elements, I find that the evidence overall points to the allocation of a heavy level of weight in favour of revocation of cancellation of the Applicant’s visa. The second part of the Other Consideration which relates to impact on an Australian business interest, is not relevant here. Overall, the Applicant’s links to the Australian community carry a heavy level of weight in favour of a revocation of the cancellation of his visa.
Finding: Other Considerations
I now summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: heavy level of weight in favour of revocation;
(c)impact on victims: neutral weight;
(d)links to the Australian community: heavy level of weight in favour of revocation.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Pursuant to s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is “another reason”, pursuant to the Direction , to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In the process of determining whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction and find as follows:-
· Primary Consideration 1: carries some, but not determinative level of weight against revocation;
· Primary Consideration 2: carries neutral level of weight due to relevance;
· Primary Consideration 3: weighs very heavy level in favour of revocation; and
· Primary Consideration 4: carries a certain, but not determinative level of weight against revocation.
I have outlined the weight attributable to the Other Considerations above and find that the combined weights allocated to Primary Consideration 3 and 4 and Other Considerations (b) and (d) outweigh Primary Consideration 1.
Therefore, my overall view of the evidence, as is relevant to the Primary and Other Considerations in Direction 90, favours the revocation of the delegate’s decision on
10 October 2022, to the extent that the Applicant’s visa status allowing him to remain in Australia should be restored.
Consequently, I find that there is “another reason” as to why the mandatory cancellation decision made on 20 December 2021 should be revoked pursuant to my above findings as per s501CA(4)(b)(ii) of the Act.
Decision
The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), and a decision in substitution is made to revoke the original visa cancellation.
I certify that the preceding 123 (one-hundred-and-twenty-three paragraphs are a true copy of the reasons for the decision herein of Member A Julian-Armitage
..............[SGD]...........
Associate
Dated: 21 March 2023
Date of hearing:
20 & 21 December 2022
Date of final submissions
2 January 2023
Representation for the Applicant:
Self-represented
Solicitor for the Respondent
Ms Sophie Edmondstone (Minter Ellison Lawyers)
Annexure A – Exhibit Register
Exhibit Number
Description of Exhibit
Party
Date of Document
Filing Date
1
G Documents (G1-G6)
R
Various
2 Nov 2022
2
Further Supplementary G Documents (S1-S53)
R
Various
2 Dec 2022
3
Statement of Facts, Issues and Contentions
R
2 Dec 2022
2 Dec 2022
4.0
Applicant’s Testimony (unsigned)
A
14 Dec 2022
14 Dec 2022
4
Letters of Support
A
Various
2 Dec 2022
5
Applicant’s Statement (unsigned and undated)
A
-
12 Dec 2022
6
Reference of Ms M Stevenson (unsigned)
A
13 Dec 2022
13 Dec 2022
7
Statement of Ms K Grima (Eldest Sister) (unsigned)
A
11 Dec 2022
13 Dec 2022
8
Certificate of completion of Positive Parenting Program
A
10 Dec 2022
13 Dec 2022
9
Anger Management Documentation
A
Various
16 Dec 2022
10
Letter of Ms B Anstis – New Access
A
19 Dec 2022
19 Dec 2022
11
Respondent’s closing submissions
R
23 Dec 2022
23 Dec 2022
12
Applicant’s closing submissions
A
Undated
28 Dec 2022
13
List of additional courses completed by the Applicant
A
Various
2 Jan 2023
Paragraph 8.4(4) and Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
0
6
0