Haidas and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 3770

Haidas and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3770 (9 November 2022)

Division:GENERAL DIVISION

File Number:          2022/4185

Re:Mohammad Ramadan Fath'al Haidas  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Member A Julian-Armitage

Date:9 November 2022

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the original visa cancellation.

...............[SGD]........................................

Member A Julian-Armitage

Catchwords

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 records – decision under review set aside and substitutes a decision revoking the original visa cancellation.

Legislation

Administration Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47

Secondary Materials

Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Member A Julian-Armitage

9 November 2022

introduction and background

1. Mohammad Haidas (“the Applicant”) is a 24-year-old citizen of New Zealand (born in 1998).  His first arrival in Australia occurred on 25 May 2008.  He was most recently granted a Class TY Subclass 444 Special Category (Temporary) visa (“the Visa”) on 27 September 2019. He has lived permanently in Australia since 2009 when he was approximately

   
   

   10 years old. He is one of seven children.

2. The Applicant has a significant history of offending throughout his migration history in Australia. The Check Results Report (“Criminal History”) is contained in the material furnished to the Tribunal[1] which details the criminal history period from 2013 to 2017 and then from 2019 to 2020. The criminal history states that the applicant has committed 37 offences dealt with judicially on 14 separated sentencing occasions. This offending has had a varied ambit of sentences imposed including; bonds, fines, driving disqualifications, intensive correction orders and terms of imprisonment with fixed non-parole periods. The Applicant’s range of offending has included:

   [1] Exhibit 1, G Documents, G6, Attachment A—Australian Criminal Intelligence Commission ‘Check

   Results Report’, pages 33 to 37.

   ·Multiple driving offences ;

   ·Multiple drug offences (possession, supply and a deal with property suspected proceeds of crime);

   ·Common assault x 2;

   ·Affray x 2; and

   ·Break and Enter.

3. On 24 November 2020, the Applicant was given notice that his visa had been cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) (“the Act”). 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. On 17 December 2022, the Applicant made written representations to the Respondent seeking a revocation of the mandatory cancellation decision. That decision was considered by a delegate of the Respondent who, on 19 May 2022, published the decision to deny the revocation sought.

4. On 24 May 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.

5. The hearing of this application proceeded before me on 4 and 5 August 2022. The following persons gave oral evidence:

   ·         The Applicant;

   ·         Ms Amal Chatky;

   ·         the Applicant’s brother (“Z”); and

   ·         Dr Emily Kwok.

6. 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

7. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   4 The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)     that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

8. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act within the requisite statutory time frame. 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:[2]

   [2] [2018] FCAFC 151.

   “…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…”[3]

   [3] Ibid, at para [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, at para [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, at para [31] (Collier J, with whom Logan and Murphy JJ agreed).

   ISSUES

9. 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?

10. 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 defined in s 501(7), which relevantly 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;

    (d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;

    …”

11. Consequently, failure of the character test arises as a matter of law.[4]

    [4] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at [63].

12. On 27 October 2020, the Applicant was convicted in the Burwood Local Court and received multiple sentences of imprisonment (aggregate) of 16 months commencing on 13/8/2020 and concluding on 12/6/2021, with a 10 month non-parole period.[5] This sentence was for “Aggravated Break and Enter in company with intent to steal”[6] which was the head sentence for a number of offences including three counts of “Drive motor vehicle during disqualification period”.[7] He was also sentenced on that day for an “Affray”[8] for which he received a 2-year community service and good behaviour bond. The Applicant has previously been convicted for offences ranging from “possession of a dangerous drug supply of a prohibited drug (steroids); dealing with the proceeds of suspected crime; common assault and numerous (8) traffic offences”.[9]

    [5] Exhibit 3, Respondent’s Supplementary Documents, S109-S113, Incident reports, pages 382-457.

    [6] Exhibit 1, G Documents, G5, Statement of reasons for decision under s501CA of the Migration Act 1958, page 23, at [19]. Referring to Attachment F; G11, Attachment F—Sentencing remarks of the Local Court of New South Wales at Burwood, for ‘2020/00057207 - R v Mohammad HAIDAS’ pages 61-66; Exhibit 3, Respondent’s Supplementary Documents, S113, Incident Reports, pages 398-457.

    [7] Ibid, at [6]. Referring to Attachment A; G6, Attachment A—Australian Criminal Intelligence Commission ‘Check Results Report’, pages 33-37; Exhibit 3, Respondent’s Supplementary Documents, S109-S113, Incident reports, pages 382-457.

    [8] Ibid.

    [9] Exhibit 1, G Documents, G6, Attachment A—Australian Criminal Intelligence Commission ‘Check Results Report’, pages 33-37; Exhibit 3, Respondent’s Supplementary Documents, S109-S113, Incident reports, pages 382-457.

13. I am satisfied and find that the Applicant does not pass the character test because 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).

    Is there another reason for the revocation of the cancellation of the Applicant’s visa?

14. In considering whether to exercise the discretion in s501CA(4) of the Act, the Tribunal is bound by s 499(2A) 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.[10] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

    [10] Direction No 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

    “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.”[11]

    [11] 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

15. Paragraph 5.2 of the Direction is designed to, “provide a framework within which decision-makers should approach their task” under s 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

16. 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.

17. 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.”[12]

    [12] Ibid, para [8].

18. 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.”[13]

    [13] Direction 90, para [9(1)].

19. 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.

20. I will now turn to addressing the Primary and Other Considerations.

    primary consideration 1 – protection of the australian community

21. In considering Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to bear in mind that the Government is committed to protecting the Australian community from harm as the 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.

22. In determining the weight allocable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

23. Turning to each limb of the consideration in turn.

    The nature and seriousness of the non-citizen’s conduct to date

24. 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 referred to above, the Applicant’s criminal history is lengthy, and he has been before the Courts regularly.

25. 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)

26. 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.

27. On 17 June 2013, the Applicant was convicted of common assault against his 13 year old brother; Z. The New South Wales Police fact sheet describes this incident as the Applicant grabbing his brother by the “neck of his t-shirt and slammed him against another shop front and proceeded to grab him around the neck preventing him from escape. He then struck the victim a number of times to the body with his hands. The victim expressed fear of his brother to police.”[14] The Tribunal heard from the Applicant and his brother. The Applicant’s version of events is that ‘his brother had been involved in an argument at the gym behind the mosque and was running off. It was dark and the Applicant was fearful for his brother’s safety, so he tried to calm him down. He said that he did not strike his younger brother and was just trying to calm him down and stop him from running off’.[15] This version of events was fully corroborated by the Applicant’s younger brother who told the Tribunal that ‘his brother did not assault him in any way and that he did not tell police he suffered any fear’.[16]

    [14] Exhibit 1, G Documents, G7, Attachment B—New South Wales Police ‘FACTS SHEET H51324169’ for the arrest on 4 March 2013 of ‘Offender: HAIDAS, MOHAMMAD’, paged 38-40; Exhibit 3, S113, page 441.

    [15] Transcript of 4 August 2022, page 11, lines 5-42. (Emphasis added).

    [16] Transcript of 4 August 2022, page 77, lines 42-44; page 79, lines 21-23. (Emphasis added).

28.  Whilst the Applicant was convicted for common assault over the incident, the evidence was that it was his first experience in adult Court, which he attended with his mother. He did not have legal representation and was advised by the Police Prosecutor that the offence was not serious and that a guilty plea would not trigger a sentence to anything serious. The Applicant took this advice and pleaded guilty and was sentenced to a section 10 bond for 12 months.[17]

[17]    Exhibit 1, G Documents, G6, Attachment A—Australian Criminal Intelligence Commission ‘Check Results Report’, page 37.

29.  There is a second incident of common assault that was dealt with by the Burwood Local Court on 29 June 2015. The charge relates to family violence which was dismissed pursuant to section 10.[18] The Tribunal was not provided with a Police Fact Sheet. The charge alleged that the Applicant had assaulted his step-nephew.[19]

[18]    Ibid, Exhibit 1, G5, at [17], page 23. Referring to Attachment F, G7, pages 38-40.

[19] Exhibit 3, S113, pages 408-407.

30.  On 2 April 2014, the Applicant was convicted for a common assault against the owner of a convenience store. He received a sentence of a section 9 bond for 12 months[20] in relation to a verbal exchange with the owner. The police alleged he threw a V can at the victim.[21] However, the Applicant denies he did this.

[20]    Exhibit 1, G Documents, G6, Attachment A—Australian Criminal Intelligence Commission ‘Check Results Report’, page 37.

[21] Exhibit 3, S113, pages 436-437.

31.  On 8 June 2016, and 28 October 2019, the Applicant was convicted of affray. In relation to the first conviction, the Police Fact Sheet describes the Applicant participating in a melee that broke out in a nightclub which he and a co-accused were involved with. For this offence, he received a $2,000 fine. With respect to the second affray, the Applicant became involved in a brawl, for which he was convicted and received a sentence of a $2,000 fine and a Community Correction Order for 2 years.[22]

[22]    Exhibit 1, G Documents, G10, Attachment E—Sentencing remarks of the Local Court of New South Wales at Penrith, for ‘2018/00383248—R v Mohammad HAIDAS’, pages 44-60; Exhibit, S17, Court Orders, page 48; S18, Facts Sheet, pages 49-51.

32. Apart from these offences, I am not able to see any other convictions that refer to a conviction for violent and/or sexual crimes.

33.  In respect to the two common assaults involving family violence, I am satisfied on the evidence before this Tribunal, particularly that of the that Applicant and his brother, that the Applicant had no intention to cause fear or harm to his brother but merely was seeking to protect him as a parent would.[23] It was evident from the brother’s testimony that he was cognisant of the need his elder brother had to protect him on the night of the incident.[24]

[23] Transcript of 4 August 2022, page 11, lines 36-41. (Emphasis added).

[24] Transcript of 5 August 2022,page 79, lines 22-26. (Emphasis added).

1. In addition, the dismissal of the other family violence charge warrants that no assessment of the nature and seriousness of the Applicant’s conduct be made.

2. In relation to the convenience store incident, I accept that there was an unpleasant verbal exchange with some violent aspect.

3. The offending relevant to this sub-paragraph will be assessed without any consideration of family violence for the reasons mentioned above. In relation to the offences relevant to this sub-paragraph, I assess the offending as moderately serious. This assessment is made on the basis that the Applicant’s evidence has been candid in all respects of his criminal history, and he has not attempted to minimise his offending, other than where conflicting versions of events have been raised in Police Fact Sheets of offences where he has entered guilty pleas.

   Paragraph 8.1.1(1)(a)(ii)

4. There are no convictions in the Applicant’s criminal history in relation to violence against women. As for the common assaults again his brother and step-nephew, for the reasons given above, I will not make an assessment of the nature and seriousness of the conduct.

   Paragraph 8.1.1(1)(a)(iii)

5. 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.

6. The Applicant’s history does reflect such acts in relation to the Applicant’s brother, who was a minor at the time, and a step-nephew. For the reasons enunciated above, no assessment of the nature and seriousness of the conduct will be made.

   Paragraph 8.1.1(1)(b)(iii)

7. This sub-paragraph refers to serious conduct involving, “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”. The Respondent has not canvassed this component in either written or oral submissions. I, therefore, find this sub-paragraph of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s behaviour.

   Paragraph 8.1.1(1)(b)(iv)

8. This sub-paragraph refers to (and renders, “serious”) any crime committed by a non-citizen while in immigration detention. The Respondent has raised an incident in the Wellington Correctional Centre on 9 March 2021 which, on the evidence, was a one on one altercation that did not lead to any charges or penalties. This incident did not occur in an Immigration Detention Centre as the sub-paragraph provides. The Respondent has not referred to any such incident in an Immigration Detention Centre as required by this component of the Direction, either orally or in written submissions. I, therefore, find this sub-paragraph is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.

   Paragraph 8.1.1(1)(c)

9. In applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women;[25] (2) acts of family violence;[26] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[27]

   [25] Paragraph 8.1.1(1)(a)(ii).

   [26] Paragraph 8.1.1(1)(a)(iii).

   [27] Paragraph 8.1.1(1)(b)(i).

10. To the best of my understanding, the Applicant has not been sentenced for conduct involving him causing a person to become involved in a forced marriage and, as mentioned above, there is no evidence of violent offences against women. Furthermore, I have dealt with the family violence conviction above, and which will not be taken into account pursuant to this sub-paragraph. That is not the end of the Applicant’s sentencing history, as he has been sentenced for a number of non-precluded offences, which attract and enliven the provisions of sub-paragraph 8.1.1(1)(c).

11. The Applicant has received numerous sentences ranging from bonds, fines, community service orders, driving disqualifications, convictions with no further penalty, escalating to terms of imprisonment with non-parole periods as evidenced in his criminal history.[28]

    [28] Exhibit 1, G Documents, G6, Attachment A – Australian Criminal intelligence Commission ‘Check Results Report’, releases 10 November 2020, pages 33-37.

12. Custodial sentences are always considered as a last resort imposition by judicial officers, considerations for the purposes of this sub-paragraph, is that the Applicant has had the full gamut of sentences imposed over a period of some 9 years.

13. Apart from the offending that attracted the imposition of terms of imprisonment, there are multiple offences that could be considered less than serious, in isolation. However, the cumulative effect of the Applicant’s offending, together with the range of sentences imposed across the 9 years, leads to the conclusion that the Applicant’ s unlawful conduct in this country has been serious in nature.

    Paragraph 8.1.1(1)(d)

14. This sub-paragraph addresses the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness. It is obvious that there has been a steady and frequent pattern of driving offences dating back to 2014, with an obvious recurring pattern. In terms of driving offences, the Applicant has committed in the vicinity of 12 such offences[29] attracting sentencing in one form or another. He has been convicted of 11 drug offences, which have mainly been drug possession convictions, and all prior to 2015, without re-offending in this category since then. Hence, in relation to this category of offending, it is safe to observe that whilst there was notable frequency in the early stages of the Applicant’s offending, there is now no frequency of drug offending.

    [29] Exhibit 3, Respondent’s Supplementary Documents, S109-S113, Incident reports, pages 382-457.

15. The Applicant’s offending has involved violent offences in the past, having received a s 9 Bond for Common Assault on 2 April 2014.[30] He was also convicted of Common Assault on 20 May 2015 for which he was sentenced to 1 month’s imprisonment and a further Common Assault for which he was sentenced to 1 month’s imprisonment on 2 September 2015.[31] The Applicant has also been convicted on three occasions for Affray.[32] He was sentenced on
    27 October 2020 to a Community Corrections Order, and on 8 July 2016 to a fine, and then on 28 October 2019 there was the imposition of a 2 year Good Behaviour Bond.[33] Consequently, it is difficult to deny that there is a frequency to the Applicant’s offending.

    [30] Ibid, n 24.

    [31] Ibid.

    [32] Exhibit 3, Respondent’s Supplementary Documents, S109-S113, Incident reports, pages 382-457.

    [33] Ibid, n 24.

16. This sub-paragraph requires an examination of whether there is an increase in the seriousness of the Applicant’s offending. As mentioned above, there is a thread of recurring offences which are of similar nature and seriousness mainly in relation to driving offences. In addition, there is an obvious lack of re-offending in relation to drug offences.

17. In addition to the above offending, the Applicant was convicted and sentenced to 16 months imprisonment, with a non-prole period of 10 months, on one count of “Aggravated Break and Enter in Company with intent to steal”.[34] It is undeniable that this offence is serious. However, in oral evidence put to the Tribunal, the Applicant stated that ‘he thought he was accompanying a friend who was going to the address where the offence took place to collect monies owed to him’.[35] The Applicant’s version of events was that ‘he had no intention to commit any such offence; nor was he told by his friend anything other than it was merely a visit to collect his money’.[36]

    [34] Ibid, n26 and n 28.

    [35] Footnote – Transcript of 4 August 2022, page 43, lines 1-6. (Emphasis added).

    [36] Ibid.

18. Given the above, I am satisfied that the offending was relatively frequent in terms of driving offences. The Applicant acknowledged that his driving history is not good and that his offending in this regard has been the root of many problems.[37] I note there is a notable lack of re-offending in relation to drug-related offences, a fact to which I give considerable weight for the purposes of sub-paragraph 8.1.1(1)(d). Apart from these offences and their frequency, of grave concern for the purposes of this sub-paragraph is the ‘Break and Enter’ offence, which on the face of the offending shows an increase in the seriousness of the offending.  However, having had the advantage of hearing from the Applicant in relation to this offence, I found him to be a credible witness whose version of events I give weight to. Accordingly, and for the explanations provided by the Applicant in relation to the ‘Break and Enter’, I do not find that there has been an increase in the serious nature of the offending.

    [37] Transcript of 4 August 2022, page 49, lines 7-12.

    Paragraph 8.1.1(1)(e)

19. This sub-paragraph requires an examination the cumulative effect of any repeated offending of the Applicant. It is difficult to view the driving history as anything other than having cumulative effects. The Applicant himself identifies and recognises that this category of offending has been the root of the majority of his problems. He has vowed to not drive a vehicle again until he has served all the disqualification periods and has obtained a fresh driver’s licence.[38] I find the Applicant to have gained a level of maturity and insight into his offending that will well equip him going forward and dealing with his past offending. Whilst I find that there has been an unquestionable cumulative effect caused by the offending, I accept the Applicant’s evidence in relation to how he will deal with these issues in the future, so as to eliminate the trends of his past offending. Hence, I give little weight to the cumulative effects of repeat offending pursuant to this sub-paragraph.

    [38] Transcript of 4 August 2022, page 49, lines 16-19.

    Paragraph 8.1.1(1)(f)

20. This sub-paragraph looks at whether a non-citizen has provided false or misleading information to the Minister’s department, including by not disclosing criminal offending. There is nothing to indicate that the Applicant has provided any false or misleading information to anyone including by not disclosing criminal offending.

    Paragraph 8.1.1(1)(g)

21. The enquiry compelled by this sub-paragraph involves the issue of whether an Applicant has re-offended since being formally warned about the consequences of further offending in terms of his visa status to remain in Australia.

    Conclusion about the nature and seriousness of the Applicant’s conduct

55.  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 in Australia can be characterised as serious.

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

1. Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, we 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.

2. 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;

   (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

3. 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 the categories for which he has been convicted and sentenced, individual victims and/or the Australian community could suffer physical, or other forms of damage.

4. If he were to re-offend in the category of supply of dangerous drugs or possession of such drugs, it is reasonably foreseeable that there could be harm done to the individual consumers of such drugs, their families and the public health system.

5. Similarly, if the Applicant were to re-offend by taking control of a motor vehicle on Australian roads whilst not licenced to do so, he may not cause physical damage depending on his driving skills, but he would undoubtedly consume the already under-resourced Police and judicial services required to regulate such unlawful conduct.

6. It goes without saying that, should the Applicant re-offend in the areas of common assaults, affray or break and enter, it would likely cause harm to individuals and/or the Australian community physically, psychologically and materially in terms of resources.

7. For the above reasons, I am satisfied that individuals and/or the Australian community would suffer harm should the Applicant re-offend, which could involve physical, psychological and material harm.

   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

8. The Applicant’s Personal Circumstances Form provides how he sees his future and his belief that he is not a recidivistic risk. He states:

   “Moving to Australia as a young boy and growing up in a struggling family not having extended family to lean on I struggled to find my identity. Being bullied at school I found it hard to find a place where I fit in. I found friends from my neighbourhood whom [sic] as a young kid struggling with a lack of direction, looked to this group and tried to follow and be like them. I was introduced to drugs, alcohol and a ‘bad boy” life. I admit I made a lot of mistakes in my life and it has taken me a long time to realise my wrong ways and to identify the changes I needed to make in order to change that but I am here now and am better prepared than ever. I believe I have the right support systems in place with the right mentality and attitude, dedication, determination and the right reason why. I have been engaged since 27.09.19. She is my sole mate. She has been my greatest supporter and motivator in beginning in my journey of life.

   …

   I wish to continue calling Australia home. I wish to marry in Australia to my fiancé and build a family with her. I wish to watch all my brothers and sisters marry here and to witness my nephews and nieces grow up and begin their life’s journey. I wish for my future kids to grow up around their cousins, aunties and uncles and for my family to remain together. This experience and the possibility of being deported from my family and home has taught me an extremely valuable lesson and has certainly been the wakeup call of my life. I understand that living in Australia is not an entitlement or a right but a privilege and must be respected. No longer having the same influences in place and with the support system I have, I am super confident that I will never reoffend again. I don’t believe I am a man of bad character rather a young man trying to find his way with a few mistakes along the way. I am currently enrolled in courses while in custody to address my offending and wish to continue finding ways to address my offending when released.”[39]

   [39] Exhibit 1, G Documents, G 15 b. J2—Applicant's Personal circumstances form (completed)

   (signed 01.12.2020), pages 102-116.

9. In addition, the Applicant has provided evidence of having undertaken some 20 courses and participated in treatment available to him whilst in gaol and detention.[40] The courses and treatment include:[41]

   [40] Exhibit 5, Applicant’s Tender Bundle, Number 3, Certificates of Completion, pages 13-31.

   [41] Ibid.   

   1) Stress Management;

   2) Personality Development;

   3) Understanding Addictions;

   4) Goal Setting 101;

   5) Community Development 101;

   6) Anger Management 101;

   7) Anxiety Therapy 101;

   8) Emotional Healing 101;

   9) Emotional Intelligence;

   10) Depression Management;

   11) Healthy Relationships;

   12) Traffic Offenders Program;

   13) Charge of My Money Program;

   14) Child Abuse Recognition, Investigation, and Protection;

   15) Child Psychology 101;

   16) Getting out and staying out;

   17) High Intensity Program Unit including RUSH, Equips;

   Foundation, EQUIPS Addiction, EQUIPS Aggression, TRIP;

   18) Positive Parenting Techniques;

   19) Storytime; and

   20) Basic Men’s Barbering.

10. I am satisfied that the Applicant has taken every opportunity available to him to attend courses and receive treatment to address his offending and minimise his risk of recidivism. Furthermore, I am satisfied that he has developed a strategy for dealing with the next stage of his life.

11. The Tribunal heard evidence from the Applicant’s fiancé, Ms Amal Chakty (“Ms Chakty”). She provided a “Character Reference” contained in the G documents at page 121[42] as follows:

    [42] Exhibit 1, G Documents, G15, Attachment J—Email from the applicant to Ms Amal Chakty (applicant's partner) on his behalf, with attached:, e. J5—Bundle of letters of support from 2020 from the applicant's family members, friends, a youth worker, former employers and a former colleague (x9), pages 121-131.

    “I have known Ramsey for three years as his partner…These charges held against him strikes me as a completely uncharacteristic aberration and one that I believe he sincerely regrets.

    …

    After his last visit to prison Ramsey came out and established many goals to help him build his future. He achieved many of these goals as he started his own business and established a company where he and his family can all work together in order to support on another, build a home and assist their parents.

    Ramsey and I always have dreams and aspirations to create a fresh start and to focus on a positive future for each other and hopefully one day our kids. From the first day I met Ramsey ha has not been involved in any kind of trouble. He has spoken to me about events in the past but I have looked past it and accepted that he has changed. I understand he has committed multiple offences in the past and now he has a chance on getting deported however he has younger siblings who live here and have their lives set up as well as myself…

    He is trying really hard to build a fresh start, improve and make something of himself. Ramsey is such an inspiring person always finding different ways to better himself and invest in the future. I continue to stress that he is smart, family oriented, hardworking, motivated, trustworthy, honest and very respectful of others and everyone around him.

    …”

12. Dr Emily Kwok; Psychologist (“Dr Kwok”) provided a report[43]  which relevantly states that “with appropriate intervention, it is my opinion that he will be of low risk of reoffending”.[44]
    Dr Kwok gave evidence at the hearing and reiterated that, dependent on whether the Applicant engages in community-based support and intervention, the Applicant’s risk of reoffending would be low. The intervention she recommended was based on a mental health plan through his general practitioner, a referral to a psychologist, and participation in cognitive behaviour therapy. It is worth noting that the evidence[45] proffered by the Applicant was that he has been attending monthly psychological counselling with
    Mr Bill Singh (“Mr Singh”), who is a private practitioner outside of the detention regime.

    [43] Exhibit 5, Applicant’s Tender Bundle, Number 5, Dr. Emily KOWK Psychologist Report, pages 36-44 and Number 7, Dr. Emily KOWK Curriculum Vitae, pages 48-49.

    [44] Ibid, paged 42 at [48].

    [45] Exhibit 5, Applicant’s Tender Bundle, Number 8, Relapse Prevention Plan - Mohammad Ramadan Fath’Al HAIDAS, pages 50-54.

    (ii)          Evidence of rehabilitation achieved by the Applicant by the time of this decision

66.      As detailed above, the Applicant has been very pro-active in addressing his past offending behaviour. Furthermore, the clinical evidence from Dr Kwok is that he has attained insight as to the seriousness of his past offending, and the effect it has had on not only his victims but the community as a whole. He presented to this Tribunal as a credible witness who was sincere in respect to his rehabilitation and desire to enjoy a better future for himself  and his family.

(iii)   Conclusions about risk

1. The totality of the evidence leads me to make several conclusions about the Applicant’s recidivist risk.

2. Based on the Applicant’s evidence and that of Ms Chakty, I am of the view that it is safe to surmise that they both genuinely want a future together, and they have plans to form a family with the strong commitment to leaving the past life of the Applicant’s offending behind them. I found the Applicant sincere in his claims that he has put strategies in place to ensure he can move forward and live his life as a law-abiding citizen with a low risk of recidivism.

3. Furthermore, I harbour no doubt that the prospect of deportation has had the effect of a much needed wakeup call, leading the Applicant to taking steps and putting plans in place to avoid being separated from his family and fiancé, with whom he enjoys strong links. I do no doubt that the Applicant has gained considerable insight into his past offending and the consequences that such offending can bring not only to the victims and the community but to him personally. It is clear that any return to his previous life will almost certainly expose him to further risk of visa cancellation and removal from Australia.

4. While there is no question that his criminal behaviour has not been exemplary, I am satisfied, based on the Applicant’s evidence and that of the independent clinical finding of Dr Kwok and Mr Singh, that his past offending has had a considerably negative impact on his life and that of his immediate family; and that if repeated, can have devastating effects and consequences.

   Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?

5. 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.”

6. I address this specific sub-paragraph purely out of an abundance of caution and for the sake of completeness. This matter does not involve a, “refusal to grant a visa to a non-citizen”. It involves an application for the “revocation” of a decision to mandatorily cancel the Applicant’s visa. This specific paragraph is therefore not relevant to the determination of this application.

   Conclusion: Primary Consideration 1

7. With respect to the weight attributable to Primary Consideration 1:

   (a)I have found that the nature and seriousness of the Applicant’s conduct to date has been “serious”.

   (b)I repeat the finding, as mentioned above, that if the Applicant were to reoffend, the nature of the harm to individuals or the Australian community would be serious, involving physical, psychological and material damage to individual victims and/or the Australian community at large, and conceivably, harm at a gravely impactful degree; and

   (c)I have assessed the Applicant’s risk of engaging in further criminal or other serious conduct (upon return to the community) as low, taking into account the available information and evidence before me addressing such risk, and against a backdrop of considerable evidence addressing the levels of rehabilitation achieved by the Applicant.

8. Based on my analysis of the material before the Tribunal, I am led to the conclusion that this Primary Consideration 1 carries a certain, but not determinative, level of weight against revocation of the mandatory cancellation of the Applicant’s visa.

   primary consideration 2: family violence

9. 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.

10. Prior to applying paragraph 8.2, I must determine who the member of the Applicant’s family was and whether the Applicant’s conduct against that family member/s amounts to family violence. I will deal with each in turn.

    Who are members of the Applicant’s family?

11. On 14 March 2013, the Applicant was convicted of a charge of Common Assault. The New South Wales Police fact sheet in relation to this conviction states that the Applicant was seen by Police yelling and pushing his 13 year old brother, in the Bankstown CBD at 10:45 pm.[46] The Fact sheet claims that the “victim told Police that his brother was angry at him as he had behaved badly in his boxing lessons”.[47] The Applicant gave evidence that, despite pleading guilty on the advice of a duty lawyer, he did not assault his brother but was attempting to prevent him from running off into the night on his own, as the Applicant was fearful that something could happen to his younger brother.[48]

    [46] Exhibit 3, Respondent’s Supplementary Documents, S1, Fact Sheet, pages 1-3.

    [47] Ibid, page 2.

    [48] Transcript of 4 August 2022, page 11, line 37; page 12, lines 16-35.

12. Z gave evidence at his brother’s hearing in the Tribunal and stated that his brother ‘had never assaulted him’. He went on to state that ‘his brother was holding him against a wall by the chest to prevent him from running off’. He went on to testify that there ‘was no slamming involved’. Under cross-examination, Z said that ‘the events of that night were a misunderstanding; and that his brother couldn’t let him run off back home in an angry state’. He went on to state that ‘at no time was he scared, crying or shaking’. When it was put to him that the Police fact sheet was correct in relation to the incident, Z vehemently ‘denied the allegations’ and added that his brother, the Applicant, ‘was not a violent person and had never laid a hand on him’.[49]

    [49] Transcript of 5 August 2022, pages 77-81. (Emphasis added).

13. I found Z to be a credible and forthright witness, whose version of events carry a great deal of veracity. This is particularly so as the fact sheet states that the Police observations were made at a distance and in the patrol car late at night; and could have been misinterpreted. Consequently, and based on the evidence of the alleged victim, I give no weight to this charge.

14. For the sake of completion, I will deal with second charge of Common Assault against The Applicant’s nephew, dealt with on 29 July 2015 by the Burwood Local Court.[50] The Applicant’s  evidence in relation to this charge was that, at no time, did he “…have my hands on him any place of his body”. …[51] He stated that he did have his arms out indicating he was going to hug the boy, but no physical contact occurred. The Applicant stated that he has a very good relationship with all his nieces and nephews, including the alleged victim in this case. He went on to state that the child’s parent did not wish to pursue the charge. Accordingly, the Check Results Report [52]  indicates that this charge was dismissed pursuant to s10.

    [50] Exhibit 3, S113, pages 408-407.

    [51] Transcript of 4 August 2022, page 28, lines4-5.

    [52] Exhibit 1, G6, pages 33-37.

Conclusion Primary Consideration 2

1. In the circumstances and on the evidence in the regards, I give no weight to this consideration in relation to these charges.

   primary consideration 3: the best interests of minor children in australia

2. 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.

3. 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;

   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

4. 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. The Applicant has no biological children and plays an active role in the lives of his five, nieces and nephews, who are aged between 15 to 15 months.

   The parties’ contentions

5. There is unwavering agreement between the parties, and the delegate for that matter, that the best interest of the children would be best served if the visa cancellation were to be revoked. This is particularly so in relation to the four older children, as they have enjoyed a close relationship with their uncle. This is less so where the younger one is concerned, as he has only been able to communicate with the Applicant via telephone and video calls. It is without question that the family is very closely knit. This is particularly so as the Applicant’s parents returned to Tonga after the father had a financial and an emotional breakdown, leaving the Applicant and his six sibling here in Australia, to not only fend for themselves but also to send funds to the parents for their maintenance. As a result, the siblings are all very close and contribute to their nieces’ and nephews’ upbringing.

6. The Applicant gave oral evidence at the hearing in relation to his strong links to his family including his nieces and nephews. His evidence was sincere and extremely plausible given the role he was left to fulfil by his parents return to Tonga. Whilst he may not now be required to engage with his family in a parental role, he did so both emotionally and financially for a considerable period.

   Findings in relation to the relevant minor children

7. I am of the view that the irrefutable evidence surrounding the best interests of the five minor children (the Applicant’s nieces & nephews) in Australia would be adversely affected by a refusal to revoke The Applicant’s visa cancellation. This is particularly so, given the strong bonds and roles the family share, which includes sharing in the upbringing of the minor children in questions.

Primary Consideration 3 Conclusion

1. I have had regards to all the applicable factors contained in paragraph 8.3 of Direction 90 as they affect the relevant minor children including the last born child. Furthermore, and having regard to the relevant and applicable factors in the sub-paragraphs of paragraph 8.3(4) of Direction 90, I find that Primary Consideration 3 weighs very heavily in favour of granting the revocation sought.

   primary consideration 4: expectations of the australian community

2. The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[53] The Direction further explains:

   “This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.”[54]

   [53] Direction No 90, para [8.4(3)].

   [54] Direction, paragraph 8.4(4). Paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.

3. With reference to the propositions in paragraph 8.4(1) of the Direction, the architecture of this sub-paragraph can, to my mind, be expressed thus:

   (a)the Australian community expects non-citizens to obey Australian laws while in Australia; and

   (b)as a norm, where a non-citizen has either:

   ·breached the expectation in the immediately preceding sub-paragraph (a); or

   ·there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);

   the Australian community would then expect that the Australian government will not allow such a non-citizen to enter or remain in Australia.

4. In addition to the guidance provided by paragraph 8.4(1) of Direction 90, 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 can and should either 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.

5. Earlier in these reasons, I addressed the two family violence charges and, for the reasons there given and the lack of weight allocated in relation to both charges, I find that the offences do not enliven the provisions in paragraph 8.4(2); meaning that the Australian community does not expect that the Australian government should cancel the Applicant’s visa.

6. The final question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in sub-paragraphs 5.2(4) and (5) of the Direction. In summary these are:

   (a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;

   (b)the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[55]

   (c)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 lives;[56] and

   (d)the nature of a 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 a visa outcome that is not adverse to the non-citizen.[57]

   [55] Direction No 90, para5[.2(4)].

   [56] Ibid.

   [57] Direction No 90, para [5.2(5)].

7. With respect to the abovementioned sub-paragraph (a), the term, “limited stay visa” is not defined in the Act. Relevant to the present purpose, s30 of the Act contemplates that “permanent” visas are ones that permit a right to remain, “indefinitely”; and “temporary visas”, which provide a conditional right to remain. “Limited stay”, as used in Direction 90, appears to be a reference to non-permanent or “temporary” visas. For present purposes, the Applicant had a permanent visa, hence the principle in sub-paragraph (a) above does not apply to the determination of this application.

8. With reference to the principle in sub-paragraph (b) mentioned above, I note the Applicant has, for all intents and purposes, resided in Australia on a permanent basis since 2004, when he was 10 or 11 years old. He is currently 29 (almost 30 years) old; and is a qualified carpenter with an impressive employment history in Australia, having provided the Tribunal with work references to show he is hardworking and reliable. Whilst he may not now have financial obligations to care for any children, he has done so in relation to his siblings, and more recently his nieces and nephews, some of  whom have resided with their mother in the Applicant’s household and been supported by the Applicant. It therefore follows that the Australian community’s tolerance for this Applicant is increased by this component of the principles in paragraph 5.2(4) of the Direction.

1. In relation to the abovementioned sub-paragraph (c), the Applicant has resided in Australia for 18 years, having spent two thirds of his life here, and all of his adulthood. These factors provide the Australian community with a higher than usual tolerance of criminal or other serious conduct committed by this Applicant.

2. With reference to the abovementioned sub-paragraph (d), I am of the view and find that, despite all good intentions and strategies to avoid reoffending on the part of the Applicant which work in his favour, should he reoffend, the resulting harm, based on his past criminal history, has not been of sufficient magnitude to invoke the Australian communities’ intolerance of a visa outcome that is not adverse to the non-citizen.

3. I have, therefore, arrived at a finding that the Australian community’s expectations are modified such that the community has a higher than usual tolerance of the criminal conduct committed by this Applicant. In the circumstances, I find that the Australian community’s expectations are that the government provide the Applicant with the revocation sought.

   Conclusion: Primary Consideration 4

4. Primary Consideration 4 carries a certain, but not determinative, level of weight in favour of the revocation of the cancellation.

   other considerations

5. Direction 90 requires that Other Considerations listed in paragraph 9 are looked at in a non-exhaustive manner.

   Other Consideration (a): International non-refoulement obligations

6. There is nothing to be gleaned in either the written or oral material before the Tribunal to indicate that the removal of the Applicant from Australia would result in a breach of Australia’s international non-refoulement obligations. Consequently, this Other Consideration is not relevant in the determination of this application.

   Other Consideration (b): Extent of impediments if removed

7. Paragraph 9.2 of Direction 90 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.

   The Applicant’s written submissions

8. The Applicant’s Statement of Facts, Issues and Contention lodged by his representatives  contends:

   “he would face substantial barriers given the following:
   i.   The Applicant is 29 years old. He has lived in Australia since the age of 12 years old. He has no ties or connections with New Zealand.

   ii.The Applicant lack personal support and would [sic] constitute an obstacle to settlement in New Zealand.

   iii.Psychologist report [Gdocs p132-143] assessed the Applicant as suffering depression and anxiety and we submit that the separation from his family would evidently exacerbate his condition if removed.”[58]

   [58] Exhibit 4, Applicant’s SFIC, page 5, at [30].

9. In the Applicant’s affidavit[59], paragraph 24 to 26, the Applicant states that he is in a long-term relationship with his fiancé, Ms Chakty, whom he describes as his “rock and support and she is ready to help and support me through the next chapter of our lives”. Ms Chakty gave oral evidence at the hearing, confirming that she was in a relationship with the Applicant and that they are looking at getting married and having a family.[60] Ms Chakty told this Tribunal that she was well aware of the Applicant’s criminal history  and that she did not condone any part of it.[61] Under cross-examination she stated that if the Applicant was to be deported she would not join him as she could not leave her family with whom she is very close. [62]

   [59] Exhibit 4, Applicant’s Tender Bundle, Number 1, pages 1-9.

   [60] Transcript of 4 August 2022, page 68, line 19 – page 70, line 32.

   [61] Ibid.

   [62] Ibid, n 60.

10. For the sake of completion, and with reference to the provisions of sub-paragraph 9.2(1)(a), (b) and (c), the Applicant is a 29-year-old man in good health, save for some reported issues with depression and anxiety. The language and culture in New Zealand are not dissimilar to that of Australia. Whilst there may be medical and economic support available to the Applicant in New Zealand, I find that he would have difficulties obtaining the types and level of support he enjoys from his family, fiancé and counsellors in Australia.

    Other Consideration (c): Impact on victims

11. 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. In the present case there is no material or information which requires the application of this paragraph.

    Other Consideration (d): Links to the Australian Community

12. Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.

13. 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.

    (1)     Strength, nature and duration of ties

14. 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.

    1   Impact of non-revocation on the Applicant’s immediate family

15. This initial exercise requires me to identify the Applicant’s immediate family in Australia. As has been mentioned above, the Applicant has  six siblings and  five nieces and nephews, in Australia with whom he has strong ties and connections. The Tribunal has received statements from some family members espousing how close the family is and how important the Applicant is to the family unit. Furthermore, he is in a long-term relationship with his fiancé with plans to marry and have a family. 

    2 Strength, nature, and duration of “other ties” – length of residence

16. 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.

17. I will now refer to the two tempering sub-elements in paragraph 9.2(a) of Direction 90. The first of those compels me to allocate less weight if the Applicant began offending soon after arriving here. As mentioned previously, the Applicant came to Australia in 2004. He has spent all his adult life in Australia and the vast majority of his formative years, including his schooling and trade studies and apprenticeship as a carpenter, in Australia. His entire work history has also been in Australia.

18. The second of the two tempering sub-elements compels an assessment of the extent of the Applicant’s positive contributions to the Australian community. I find that the applicant, on all accounts, is a hard worker who has acquired a trade as a carpenter and worked consistently with impressive references from his past employer in Australia.

    3 Strength, nature, and duration of “other ties” – family and other social links

19. The Applicant has strong family links across many siblings and nieces and nephews. He also enjoys the fiancé’s family links. He gave evidence at the hearing that he has cut all links with the people he used to socialise with as they were a bad influence on  him and represented his past. He also stated that he has links with Father Chris Riley, whom I presume to be a Catholic priest, who is heavily involved in youth work, and in which the Applicant wishes to get involved, should he be permitted to remain in Australia.

    (2)  Impact on Australian business interests

20. 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”. I am of the view and find that this component of Other Consideration (d) is not relevant.

    Weight allocable to Other Consideration (d): links to the Australian community

21. With reference to the first part of this Other Consideration (the strength, nature, and duration of the Applicant’s ties to Australia), after having analysed its three constituent elements, I am of the view that the totality of the evidence points to the allocation of  a heavy weight in favour of the Applicant. Overall, the Applicant’s links to the Australian community carry a great deal of weight in favour of a finding that his visa status in order to remain in Australia be reinstated, particularly given the length of time he has lived in that community.

    Findings: Other Considerations

22. 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 here;

    (b)extent of impediments if removed: carries some weight in favour of revocation;

    (c)impact on victims: not relevant here;

    (d)links to the Australian community: carries a compellingly heavy weight in favour of revocation.

    conclusion

    Is there another reason to revoke the cancellation of the Applicant’s visa?

23. 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 90, to revoke the cancellation. As noted above, the Applicant does not pass the character test.

24. In considering whether there is another reason to exercise the discretion afforded by s501CA(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 a certain, but not determinative, weight against the revocation of the visa cancellation;

    ·Primary Consideration 2: weighs heavily in favour of revocation of the visa cancellation;

    ·Primary Consideration 3:  Weighs very heavily in favour of revocation of the visa cancellation;

    ·Primary Consideration 4: weighs heavily in favour of revocation of the visa cancellation.

    ·I have outlined the weight attributable to the Other Considerations and find that the combined weights allocated to Primary Considerations 2, 3, and Other Considerations sufficiently outweigh Primary Consideration 1.

    ·A holistic view of the evidence relevant to the Primary and Other Considerations in Direction 90, therefore, favours the revocation of the Delegate’s decision made on 23 May 2022, such that the Applicant’s visa status to remain in Australia should be restored to him.

25. Consequently, decision of 23 May 2022 should be revoked for the purposes of s501CA(4)(b)(iii) of the Act.

    DECISION

26. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the original visa cancellation.

I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Member A Julian-Armitage

......[SGD]..........................................

Associate

Dated: 9 November 2022

ANNEXURE A

EXHIBIT	PARTY	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
1	R	G Documents (G1-G21, pages 1-190)	Various	14 June 2022
2	R	Respondent’s SFIC (pages 1-12)	29 July 2022	29 July 2022
3	R	Respondent’s Supplementary Documents (S1-S117, pages 1-474)	Various	28 July 2022
4	A	Applicant’s SFIC (6 pages)	17 July 2022	17 July 2022
5	A	Tender Bundle (TB1-TB18, pages 1-74)	Various	17 July 2022 [TB1-4] 1 August 2022 [TB5-18]