Heley and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 4376

Heley and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4376 (19 October 2022)

Division:GENERAL DIVISION

File Number:2022/6081          

Re:Rodger Heley  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Member A Julian-Armitage

Date:           19 October 2022

Date of written reasons:         16 December 2022

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 27 July 2022 to not revoke the cancellation of the Applicant's visa.

..........................[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 record – decision under review affirmed.

Legislation

Administration Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

Afu v Minister for Home Affairs [2018] FCA 1311

FYBR v Minister for Home Affairs [2019] FCA 500

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

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

Minister for Home Affairs v Buadromo [2018] FCAFC 151

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

SECONDARY MATERIAL

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

16 December 2022

INTRODUCTION AND BACKGROUND

1. The Applicant, Roger Heley (“the Applicant”), is a 55 year old citizen of New Zealand (born in 1967) who came to Australia in 1988[1]. He migrated to  Australia in 1997  when he was 30 years old and has lived here permanently since.[2]

   [1] Exhibit 1, G Documents, G9, Incoming passenger cards for the Applicant, pages 276-281.

   [2] Ibid.

2. On 29 November 2021, the Applicant was given notice that his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) had been cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[3] 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 served on a full-time basis in a custodial institution. On
   

   [3] Exhibit 1, G Documents, G2, Statement of reasons, pages 14-27.

   [4] Ibid, G2, Notification of decision not to revoke visa cancellation decision made under s 501(3A) Migration Act 1958 (Cth), pages 8-9.

   [5] Ibid.

   31 November 2021, 1, 4, 5 and 6 December 2021, 1 February 2022 and 16 May 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 27 July 2022[4], published the decision to deny the revocation sought.[5]

3. On 27 July 2022[6], 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 in order to revoke the mandatory cancellation of the Applicant’s visa.

   [6] Exhibit 1, G Documents, G1, Application for review of decision, pages 3-7.

4. The matter came before me on the 4^th and 5^th of October 2022. The Tribunal heard evidence from the Applicant; his birth mother; and a close family friend, Ms Raquel Tonga. The Tribunal also received written evidence, which was reduced to an agreed Exhibit List, a true copy of which is attached to these Reasons and marked “Annexure A”.  On
   19 October 2022, the Tribunal affirmed the decision under review and now provides its written reasons.

   Offending

5. The Applicant has a significant history of offending throughout his migration history in Australia. The National Criminal History Check[7] (“Criminal History”) is contained in the material furnished to the Tribunal, spans the period of 15 June 1997 to 16 July 2022   which details the Applicant’s criminal history as follows:[8]

   [7] Ibid, G2, Attachment A: National Criminal History Check, pages 28-36.

   [8] Ibid.

Source	Court	Date	Offence	Result
Qld	Cleveland Magistrates Court	15/10/2021	Breach Of Probation Order Imposed On 16/07/2020 (Re: Original Offences) As Heley, Rodger	For Breach Of Order(S): Conviction Recorded Fined: $300.00 Time To Pay: 28d Refer To Sper Order(S) Revoked Resentenced For Original Offence(S) Possess Tainted Property, Stealing On All Charges: Conviction Recorded Sentenced Imprisonment: 12mo Concurrent Declare That Time Spent In Pre-Sentence Custody Be Deemed As Time Already Served Under This Sentence: 69d (08/08/2021 To 15/10/2021) Parole Release Date: 04/04/2022 Breach Of Bail Condition X4, Trespass - Entering Or Remaining In Dwelling Or Yard) On All Charges: Conviction Recorded Not Further Punished
Qld	Cleveland Magistrates Court	15/10/2021	[Cc] 433(1) Receiving Tainted Property (On 01/06/2021) Bcs2102848112 [Cc] 408a(1)(A) Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use (On 01/06/2021) Bcs2102848121 [Cc] 408a(1)(A) Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use (On 01/06/2021) Bcs2102848198 As Heley, Rodger	On All Charges Conviction Recorded Sentenced Imprisonment: 2y 6mo Concurrent Declare That Time Spent In Pre-Sentence Custody Be Deemed As Time Already Served Under This Sentence - 69d (08/08/2021 To 15/10/2021) Parole Release Date: 04/04/2022
Qld	Cleveland Magistrates Court	15/10/2021	[Ba] 33(1) Failure To Appear In Accordance With Undertaking (On 29/07/2021) Bcs2102848619 As Heley, Rodger	Conviction Recorded Sentenced Imprisonment: 1mo Cumulative Declare That Time Spent In Pre-Sentence Custody Be Deemed As Time Already Served Under This Sentence - 69d (08/08/2021 To 15/10/2021) Parole Release Date: 04/04/2022
Qld	Cleveland Magistrates Court	15/10/2021	[Cc] 408a(1)(A) Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use (On 06/08/2021) Bcs2102986809 As Heley, Rodger	Conviction Recorded Sentenced Imprisonment: 2y 6mo Concurrent Declare That Time Spent In Pre-Sentence Custody Be Deemed As Time Already Served Under This Sentence - 69d (08/08/2021 To 15/10/2021) Parole Release Date: 04/04/2022
Qld	Cleveland Magistrates Court	15/10/2021	[Cc] 408a(1)(B) Unlawful Possession Of Motor Vehicles, Aircraft Or Vessels With Intent To Deprive (Between 31/10/2020 And 27/12/2020) Bcs2100766852 As Heley, Rodger	Conviction Recorded Sentenced Imprisonment: 12mon To Be Suspended For: 2y Concurrent
Qld	Cleveland Magistrates Court	15/10/2021	[Dm] 9(1) Possessing Dangerous Drugs (On 27/02/2021) Bcs2100765368 [Dm] 10(2)(A) Possess Utensils Or Pipes Etc For Use (On 27/02/2021) Bcs2100765384 [Cc] 398 Stealing (On 23/02/2021) Bcs2100766674 [Cc] 408c(1)(A)(I) Fraud - Dishonest Application Of Property Of Another (On 23/02/2021) Bcs2100766739 [Cc] 408c(1)(A)(I) Fraud - Dishonest Application Of Property Of Another (On 23/02/2021) Bcs2100766836 [Cc] 408c(1)(A)(I) Fraud - Dishonest Application Of Property Of Another (On 23/02/2021) Bcs2100766879 [Cc] 408c(1)(D) Fraud - Dishonestly Gain Benefit/ Advantage (On 23/02/2021) Bcs2100766895 [Cc] 408c(1)(D) Fraud - Dishonestly Gain Benefit/ Advantage (On 23/02/2021) Bcs2100766925 [Cc] 408c(1)(D) Fraud - Dishonestly Gain Benefit/ Advantage (On 23/02/2021) Bcs2100766950 As Heley, Rodger	On All Charges Conviction Recorded Sentenced Imprisonment: 12mo Concurrent Declare That Time Spent In Pre-Sentence Custody Be Deemed As Time Already Served Under This Sentence - 69d (08/08/2021 To 15/10/2021) Parole Release Date: 04/04/2022
Qld	Cleveland Magistrates Court	15/10/2021	[Cpca] 252(1) Possess Tainted Property (On 12/04/2021) Bcs2101317431 As Heley, Rodger	Conviction Recorded Sentenced Imprisonment: 12mo Concurrent Declare That Time Spent In Pre-Sentence Custody Be Deemed As Time Already Served Under This Sentence - 69d (08/08/2021 To 15/10/2021) Parole Release Date: 04/04/2022
Qld	Cleveland Magistrates Court	15/10/2021	[Ba] 29(1) Breach Of Bail Condition (On 29/03/2021) Bcs2101317342 [Ba] 29(1) Breach Of Bail Condition (On 05/04/2021) Bcs2101317369 [Ba] 29(1) Breach Of Bail Condition (On 12/04/2021) Bcs2101317377 As Heley, Rodger	On All Charges Conviction Recorded Not Further Punished
Qld	Cleveland Magistrates Court	15/10/2021	[Ba] 29(1) Breach Of Bail Condition (On 26/04/2021) Bcs2101497383 As Heley, Rodger	Conviction Recorded Not Further Punished
Qld	Maroochydore Magistrates Court	16/07/2020	[Cc] 398 Stealing (On 18/10/2019) Bcs1905159417 [Ba] 29(1) Breach Of Bail Condition (On 18/11/2019) Bcs1905159531 [Ba] 29(1) Breach Of Bail Condition (On 25/11/2019) Bcs1905160041 [Ba] 29(1) Breach Of Bail Condition (On 02/12/2019) Bcs1905160067 [Ba] 29(1) Breach Of Bail Condition (On 09/12/2019) Bcs1905160091 [Soa] 11(1) Trespass - Entering Or Remaining In Dwelling Or Yard (On 13/12/2019) Bcs1905160202 [Cpca] 252(1) Possess Tainted Property (On 29/03/2020) Bcs2001310782 As Heley, Rodger	On All Charges Conviction Recorded Sentenced Imprisonment: 109d Concurrent Declare That Time Spent In Pre-Sentence Custody Be Deemed As Time Already Served Under This Sentence - 109d (29/03/2020 To 15/07/2020) Probation Period: 18mo
Qld	Maroochydore Magistrates Court	16/07/2020	[Ppra] 754(2)&Ppras69a(1) (B) Evasion Offence Type 1 Vehicle Related Offence (On 29/08/2019) Bcs1903401555 As Heley, Rodger	Conviction Recorded Sentenced Imprisonment: 9mo Concurrent Declare That Time Spent In Pre-Sentence Custody Be Deemed As Time Already Served Under This Sentence - 109d (29/03/2020 To 15/07/2020) Parole Release Date: 16/07/2020 Mdl Disqualified Period: 2y
Qld	Maroochydore Magistrates Court	16/07/2020	[Ro] 5(1)(C) Unauthorised Dealing With Shop Goods (Maximum $150) (On 22/01/2020) Bcs2001310812 [Cpca] 252(1) Possess Tainted Property (On 29/08/2019) Bcs1903401644 [Hr] 146(1) Not Being Endorsed To Possess Restricted Drug (On 29/08/2019) Bcs1903401741 [Dm] 10(2)(A) Possess Utensils Or Pipes Etc For Use (On 18/10/2019) Bcs1904126906 As Heley, Rodger	On All Charges Conviction Recorded Not Further Punished
Qld	Maroochydore Magistrates Court	30/03/2020	[Ba] 33(1) Failure To Appear In Accordance With Undertaking (On 03/12/2019) Bcs2001299975 As Heley, Rodger	Conviction Recorded Fined: $300.00 Time To Pay: 28d
Qld	Beenleigh Magistrates Court	19/03/2018	Application For Revocation Of Community Service Order Imposed On 18/10/2017 (Re: Possessing Dangerous Drugs) As Heley, Rodger	Application Granted Order(S) Revoked Resentenced For Original Offence(S) On All Charges No Conviction Recorded Fined: $800.00 Refer To Sper
Qld	Cleveland Magistrates Court	18/10/2017	[Dm] 9(1) Possessing Dangerous Drugs (On 07/08/2017) Bcs1703086728 As Heley, Rodger	On All Charges Conviction Recorded Community Service Time: 100h To Be Completed Within: 12mo
Qld	Cleveland Magistrates Court	18/10/2017	[Ppra] 791(2) Contravene Direction Or Requirement (On 15/08/2017) Bcs1703194890 As Heley, Rodger	Conviction Recorded Not Further Punished
Qld	Beenleigh District Court	20/09/2013	Dm 6 Supplying Dangerous Drugs (2 Chgs On 16/03 & 10/04/2011) Above Refers To Indictment As Heley, Rodger	On All Charges Conviction Recorded Sentenced Imprisonment: 12mo
Qld	Beenleigh District Court	20/09/2013	The Following Magistrates Court Matters Were Heard By District Court: Ba 33(1) Failure To Appear In Accordance With Undertaking (On 20/01/2012) Ppra 754(2) Fail To Stop Motor Vehicle (4 Chgs On 01/03, 13/03, 16/03, 20/03/2012) Ppra 790(1) Assault Or Obstruct Police Officer (On 02/04/2012) As Heley, Rodger	Summary Offences Dealt With Under S651 Cc: On All Charges Conviction Recorded Not Further Punished
Qld	Beenleigh District Court	20/06/2013	Cc 421(2)&(3) Enter Premises And Commit Indictable Offence By Break (13 Chgs On/Abt/Btn 12/02/2012 & 01/04/2012) Cc 421(1) Enter Premises With Intent (2 Chgs On 01/04/2012 And On/ Abt 27/02/2012) As Heley, Rodger	On All Charges Conviction Recorded Sentenced Imprisonment: 6y
Qld	Beenleigh District Court	20/06/2013	Cc 408a(1)(B) Unlawful Possession Of Motor Vehicles, Aircraft Or Vessels With Intent To Deprive (2 Chgs Btn 11/02/2012 & 30/03/2012) Cc 408a(1)(A) Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use (6 Chgs On/Abt/Btn 27/02/2012 & 05/04/2012) As Heley, Rodger	On All Charges Conviction Recorded Sentenced Imprisonment: 3y
Qld	Beenleigh District Court	20/06/2013	Cc 408a(1)(A)&(1a) Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use Used/Intended For Indictable Offence (Btn 27/02/2012 & 02/03/2012) Cc 433(1)&(A) Receiving Tainted Property-Property Obtained By Way Of An Act Constituting A Crime (Btn 15/03/2012 & 05/04/2012) Cc 421(1)&535 Attempted Enter Premises With Intent (On 29/03/2012) Cc 398 Stealing (On/Abt 01/04/2012) As Heley, Rodger	On Each Charge Conviction Recorded Sentenced Imprisonment: 3y
Qld	Beenleigh District Court	20/06/2013	Cc 408c(1)(D) Fraud - Dishonestly Gain Benefit/ Advantage (2 Chgs Btn 26/02/2012 & 21/03/2012) Cc 408c(1)(H) Fraud - Dishonestly Make Off Without Paying (5 Chgs On/Btn 29/02/2012 & 05/04/2012) Above Refers To Indictment No: 206/13 As Heley, Rodger	On All Charges Conviction Recorded Sentenced Imprisonment: 6mo All Terms Of Imprisonment To Be Served Concurrently Parole Eligibility Date: 24/05/2014
Qld	Beenleigh Drug Court	25/05/2012	Vacated Intensive Drug Rehabilitation Order Imposed On 10/01/2012 (Re: Original Offences) Rehabilitation Order Terminated As Heley, Rodger	Final Sentence Enter Premises & Commit An Indictable Offence By Break X 7, Enter Premises & Commit In Indictable Offence X 3, Attempted Enter Premises With Intent To Commit An Indictable Offence X 2, Unlawful Entry Of Vehicle For Committing An Indictable Offence: On Each Charge Conviction Recorded Sentenced Imprisonment: 3y Uumv X 10, Attempted Uumv: On Each Charge Sentenced Imprisonment: 2y Stealing X 2: On Each Charge Sentenced Imprisonment: 12mo All Terms Of Imprisonment To Be Served Concurrently 165 Days In Pre-Sentence Custody Taken Into Consideration Parole Eligibility Date: 24/05/2013
Qld	Beenleigh Drug Court	25/05/2012	Breach Of Probation Order Imposed On 22.8.11 (Re: Unlawful Possession Of Suspected Stolen Property) As Heley, Rodger	For Breach Of Order(S): No Conviction Recorded Admonished & Discharged Order(S) Revoked Resentenced For Original Offence(S) No Conviction Recorded Not Further Punished
Qld	Beenleigh Drug Court	10/01/2012	[Cc] 398 Stealing (On 01/09/2011) Bcs1102628311 [Cc] 398 Stealing (Between 08/09/2011 And 11/09/2011) Bcs1102628116 As Heley, Rodger	On Each Charge Conviction Recorded Intensive Drug Rehabilitation Order Sentenced Imprisonment: 12mo
Qld	Beenleigh Drug Court	10/01/2012	[Cc] 421(2)&(3) Enter Premises And Commit Indictable Offence By Break (On 06/09/2011) Bcs1102628183 [Cc] 421(2) Enter Premises And Commit Indictable Offence (Between 02/09/2011 And 06/09/2011) Bcs1102627756 [Cc] 421(2)&(3) Enter Premises And Commit Indictable Offence By Break (Between 05/09/2011 And 08/09/2011) Bcs1102628221 [Cc] 421(1)&535 Attempted Enter Premises With Intent To Commit Indictable Offence (Between 07/08/2011 And 10/09/2011) Bcs1102628361 [Cc] 421(1)&535 Attempted Enter Premises With Intent To Commit Indictable Offence (On 09/09/2011) Bcs1102628426 [Cc] 421(2) Enter Premises And Commit Indictable Offence (On 01/09/2011) Bcs1102700313 [Cc] 421(2)&(3) Enter Premises And Commit Indictable Offence By Break (Between 29/08/2011 And 01/09/2011) Bcs1102700615 [Cc] 421(2)&(3) Enter Premises And Commit Indictable Offence By Break (Between 01/09/2011 And 04/09/2011) Bcs1102700712 [Cc] 421(2)&(3) Enter Premises And Commit Indictable Offence By Break (Between 02/09/2011 And 05/09/2011) Bcs1102700763 [Cc] 421(2) Enter Premises And Commit Indictable Offence (On 06/09/2011) Bcs1102727971 [Cc] 427(1) Unlawful Entry Of Vehicle For Committing Indictable Offence (Between 06/09/2011 And 09/09/2011) Bcs1102845923 [Cc] 421(2)&(3) Enter Premises And Commit Indictable Offence By Break (On 04/09/2011) Bcs1103374126 [Cc] 421(2)&(3) Enter Premises And Commit Indictable Offence By Break (On 04/09/2011) Bcs1103492919 As Heley, Rodger	On Each Charge Conviction Recorded Intensive Drug Rehabilitation Order Sentenced Imprisonment: 3y 6mo
Qld	Beenleigh Drug Court	10/01/2012	[Cc] 408a(1)(A) Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use (Between 02/09/2011 And 06/09/2011) Bcs1102627837 [Cc] 408a(1)(A) Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use (Between 02/09/2011 And 06/09/2011) Bcs1102627861 [Cc] 408a(1)(A) Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use (Between 02/09/2011 And 06/09/2011) Bcs1102627934 [Cc] 408a(1)(A) Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use (On 01/09/2011) Bcs1102700364 [Cc] 408a(1)(A)&535 Attempted Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use (On 01/09/2011) Bcs1102700429 [Cc] 408a(1)(A) Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use (On 01/09/2011) Bcs1102700445 [Cc] 408a(1)(A) Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use (On 01/09/2011) Bcs1102700534 [Cc] 408a(1)(A) Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use (On 01/09/2011) Bcs1102700551 [Cc] 408a(1)(A) Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use (On 01/09/2011) Bcs1102700577 [Cc] 408a(1)(A) Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use (Between 29/08/2011 And 01/09/2011) Bcs1102700631 [Cc] 408a(1)(A) Unlawful Use Of Motor Vehicles Aircraft Or Vessels - Use (Between 29/08/2011 And 01/09/2011) Bcs1102700691 As Heley, Rodger	On Each Charge Conviction Recorded Intensive Drug Rehabilitation Order Sentenced Imprisonment: 2y All Terms Of Imprisonment To Be Served Concurrently Hist - All Terms Of Imprisonment Wholly Suspended For Order Pursuant To Drug Court Act 2000 Total Restitution: $78,244.28
Qld	Redcliffe Magistrates Court	22/08/2011	[Soa] 16 Unlawful Possession Of Suspected Stolen Property (On 21/07/2011) Bcs1102043762 As Heley, Rodger	Conviction Recorded Probation Period: 12mo Fined: $400.00 In Default Imprisonment: 4d Time To Pay: 28d
Qld	Brisbane Magistrates Court	23/07/2009	[Ro] 5(1)(C) Unauthorised Dealing With Shop Goods (Maximum $150) (On 03/05/2009) Bcs0901601984 As Heley, Rodger	Conviction Recorded Fined: $400.00 In Default Imprisonment: Refer To Sper
Qld	Cleveland Magistrates Court	09/07/2009	[Ba] 29(1) Breach Of Bail Condition (On 29/09/2008) Bcs0901609462 As Heley, Rodger	Conviction Recorded Fined: $200.00 In Default Imprisonment: 2d Time To Pay: 2mo
Qld	Brisbane Magistrates Court	03/12/2008	[Cc] 398(1) Stealing (On 14/10/2008) Bcs0800091276 As Heley, Rodger	Conviction Recorded Sentenced Imprisonment: 3mo To Be Suspended For: 2y
Qld	Beenleigh Magistrates Court	24/10/2008	Dm 9(1) Possessing Dangerous Drugs (On 18.09.08) As Heley, Rodger	Conviction Recorded Fined: $500.00 In Default Imprisonment: 7d No Time To Pay
Qld	Beenleigh Magistrates Court	24/10/2008	Wa 67(1) Possessing/Acquiring Restricted Items (On 18.09.08) As Heley, Rodger	Conviction Recorded Fined: $400.00 In Default Imprisonment: 6d No Time To Pay
Qld	Wynnum Magistrates Court	01/10/2007	Breach Of Intensive Correction Order Imposed On 19/4/07 (Re: Dangerous Operation Of A Vehicle) As Heley, Roger	For Breach Of Order: Convicted & Fined $400 I/D Imp. 6 Days Refer To Sper
Qld	Brisbane Magistrates Court	19/04/2007	Cc Dangerous Operation Of A Vehicle (On 17.01.07) Cpca Possess Tainted Property (On 17.01.07) Ppra Fail To Stop Motor Vehicle (On 17.01.07) As Heley, Roger	On All Charges: Convicted & Sentenced 3 Mths Imprisonment To Be Served By Way Of An Intensive Correction Order Mdl Disqualified 2 Yrs On All Charges: Convicted & Fined $750 I/D Imp. 10 Days Time To Pay 3 Mths
Qld	Beenleigh Magistrates Court	16/04/2007	Ro Unauthorized Dealing With Shop Goods (Maximum $150) (On 30/12/06) As Heley, Rodger	No Conviction Recorded Fined $150 I/D Imp. 4 Days Time To Pay 1 Month Restitution $76.27
Qld	Brisbane Magistrates Court	09/01/2007	Dfvpa Breach Of Order - Resp Served With Order (On 25/12/06)	Convicted & Fined $750 I/D Imp. 75 Days Time To Pay 6 Mths
Qld	Brisbane Magistrates Court	11/09/2006	Dfvpa Breach Of Order - Resp Served With Order (On 19/08/06)	Convicted & Fined $600 I/D Imp. 12 Days Time To Pay 2 Mths
Qld	Beenleigh Magistrates Court	30/09/2005	Cc Stealing (On 10/07/05)	Convicted & Fined $240 I/D Imp. 4 Days Time To Pay 1 Month
Qld	Holland Park Magistrates Court	05/09/2005	Cc Stealing (On Date Unkn Btn 01.01.05 & 19.08.05) Wep Unlawful Possession Of Weapons On 19.08.05) Dm Possessing Dangerous Drugs (On 19.08.05)	One Penalty Imposed: Convicted & Fined $1000.00 I/D Imp. 20 Days Time To Pay 4 Months
Qld	Brisbane Magistrates Court	02/06/2005	Cpca Possess Tainted Property (On 12.5.05)	One Penalty Imposed: No Conviction Recorded Fined $500 I/D Imp. 5 Days Time To Pay 5 Months
Qld	Holland Park Magistrates Court	22/12/1999	7(1)(E) Vag Behave In Disorderly Manner (On 05/12/99)	Convicted & Fined $100 I/D Imp. 4 Days Time To Pay 28 Days
Qld	Brisbane Magistrates Court	30/06/1997	Wilful & Unlaw Damage To Property In The Night-Time (On 15/6/97) Assault Police (On 15/6/97)	Convicted & Fined $250 I/D Imp. 12 Days Time To Pay 2 Mths Restitution $85 Time To Pay 1 Mth Convicted & Fined $150 I/D Imp. 6 Days Time To Pay 2 Mths

1. The criminal history records the commission of 9 pages of offences in addition to some 10 pages of traffic offences by the Applicant. Furthermore, the Applicant came to Australia with a reasonably long offending criminal history from New Zealand which included indecent assaults, firearms, burglaries, receive stolen goods, assault Police and various motor vehicle offences[9]:

   [9] Exhibit 1, G2, New Zealand Police criminal history, pages 49-50.

2. At the hearing of the application the following witnesses gave oral evidence:

   ·The Applicant, Rodger HELEY;

   ·Ms Raquel TONGA;

   ·Mrs Elizabeth HINE;

3. 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

4. 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.

5. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. 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:[10]

   “…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…”[11]

   [10] [2018] FCAFC 151.

   [11] 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

6. 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?

7. 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), 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;

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

   …”

8. Therefore, failure of the character test arises as a matter of law.[12]

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

9. On 15 October 2021, the Cleveland Magistrates Court sentenced the Applicant to several terms of imprisonment to be served concurrently with a head sentence  term of 2 years and 7 months imprisonment deemed to have commenced on 8 August 2021 (time served awaiting sentencing). This head sentence was for a number of offences which included receiving tainted property, unlawful use of a motor vehicle aircraft or vessels, failure to appear, unlawful possession of motor vehicle, aircraft or vessels with intent to deprive, possession of a dangerous drug, possess a utensil or pipes for use, stealing, fraud-dishonest application of property of another, fraud-dishonestly gain benefit/advantage, possess tainted property, breach of bail, entering and remaining in a dwelling or yard and a type 1 evasion offence.

10. Given that the head sentence is within the range contemplated by the character test, there is no need to apply the provisions of s501(7A) of the Act.[13]

    [13] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, at 415-416.

11. Therefore, I am satisfied, and so find, that the Applicant does not pass the character test due to him being 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 Why the Cancellation of the Applicant’s Visa Should be Revoked?

12. In considering whether to exercise the discretion in s 501CA(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.[14] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it 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.”[15]

    [14] 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.

    [15] 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

13. 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

14. 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.

15. 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.”[16]

    [16] Ibid, para [8].

16. 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.”[17]

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

17. 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.

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

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

19. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction requires decision-makers to keep in mind 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.

20. 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

21. 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 outlined above, and can be evidenced from the Applicant’s criminal history, he has offended often and over a long period of time both in Australia and in his home country prior to coming to Australia. Furthermore, he has expended the resources of Australian Court 29 times, with 20 such appearances since 2005 and used a great deal of Australia’s law enforcement services.

22. 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 criminal conduct in Australia.

    Paragraph 8.1.1(1)(a)(i)

23. 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.

24. Whilst the Applicant’s position is that he is not a violent offender, he has a conviction for assaulting Police in Australia (and another such conviction in New Zealand, prior to migrating here).[18] He also has convictions for unlawful possession of a weapon (namely and on his own evidence to be num-chuks), convictions for discharge of firearms, assault and a conviction after a plea of guilty of domestic and family violence.[19] The convictions in relation to the offences relative to this paragraph were committed over 10 years ago with no re-offending in this area since 2005 when he was convicted of possession of a weapon which, by design, could only be used in a violent scenario.  

    [18] Exhibit 1, G2, Attachment A: National Criminal History Check, pages 28-36; G2, New Zealand Police criminal history, pages 49-50.

    [19] Ibid.

25. Given that there has been no re-offending in the nature of the offences contemplated by this sub-paragraph, the assessment is given little to no weight.

    Paragraph 8.1.1(1)(a)(ii)

26. This subparagraph looks for the commission of crimes of a violent nature against women or children, regardless of the sentence imposed. Whilst there is a conviction of this nature, it was in New Zealand prior to the Applicant relocating to Australia in 1988 with no similar re-offending since.[20] Hence, I give little to no weight to this conviction.

    [20] G2, New Zealand Police criminal history, pages 49-50.

    Paragraph 8.1.1(1)(a)(iii)

27. 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.

28. The Applicant has entered a plea of guilty of domestic violence on two (2) occasions. He, however, maintains that he did not commit these offences. It is not this Tribunal’s role to go behind a conviction of another judicial entity and I do not intend to do so. The Applicant invites me to consider a part of the delegate’s decision to not grant the revocation sought dated 27 July 2022 as an authoritative source to evidence that he has not committed an offence of this nature. It is obvious that the delegate did not have access to information in this regard as paragraph 50 states “I find no information that Mr Heley has engaged in conduct that constitutes family violence as defined in the Direction”.[21] In addition, the Applicant also invites this Tribunal to consider Minister Dutton, as he then was, revocation of a previous cancellation of his visa as authoritative evidence that the convictions in relation to domestic violence were not of a level of concern such that it did not pose an issue to his revocation. This Tribunal cannot accede to these invitations as there is a clear notation in the Applicant’s criminal history showing the two (2) breaches of domestic violence orders. In respect to the revocation of his previous cancellation, this Tribunal has not been furnished with any material in order to substantiate the Applicant’s version of event in relation to domestic violence convictions. However, for the reasons given above, little to no weight is given in respect to this sub-paragraph.

    [21] Exhibit 1, G2, Statement for reasons, page 21

    Paragraph 8.1.1(1)(b)

29. 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.

30. The applicant has convictions in relation to supply of a Dangerous Drug which target the vulnerability of members of the Australian community who suffer from abuse of those drugs and can be well categorised as vulnerable members of the community.

    Paragraph 8.1.1(1)(c)

31. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. 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.

32. The Applicant has appeared before the Courts on numerous occasions with a variety of sentences imposed which have included fines, intensive drug rehabilitation orders, intensive correction orders and sentences of imprisonment for a considerable number of convictions ranging from 6 months to 3 years and 6 months[22].

    [22] Ibid, n18.

33. Given the sheer number of court appearances ending in terms of imprisonment the Applicant has served, it is this Tribunal view that this sub-paragraph be given a very serious weighting.

    Paragraph 8.1.1(1)(d)

34. 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.

35. It is without question that the Applicant’s offending as reflected by his Court encounters in  this country from the period from 30 June 1997 to 15 October 2021 shows a clear trend of ever increasing seriousness in the nature of the offences.

    Paragraph 8.1.1(1)(e)

36. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.

37. As touched upon earlier, the Applicant has been a repeat offender over a long period of time. Furthermore, he did not furnish any evidence, other than his own, that persuades this Tribunal that the offend will not continue.

    Paragraph 8.1.1(1)(f)

38. 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.

39. There is no evidence that the Applicant has provided any such information to the Department.

    Paragraph 8.1.1(1)(g)

40. 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).

41. The Applicant was warned in 2016 that his offending would have consequences in relation to his migration status.[23] On his own evidence, the Applicant’s visa was cancelled due to his offending. He sought revocation of the cancellation and was grant it by the Minister at this time. At the time, the Applicant expressed his intent to never be in the position where he could lose his right to remain in Australia again. Yet, and even after the warning, he reoffended, while on probation, which gave rise to the previous cancellation.

    [23] Exhibit 1, G2, Attachment H: Notice of decision to revoke the visa cancellation and acknowledgement of warning letter, pages 134-135.

42. It is clear to this Tribunal that there is little that will stop this Applicant from offending given his history and the number of opportunities he has already been given in this country.

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

1. In the circumstances and applying each of the relevant sub-paragraphs contained in paragraph 8.1.1(1) of the Direction where applicable, I am of the view that the totality of this Applicant’s criminal conduct can be characterised as “serious”.

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

2. 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.

3. 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

4. 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.

5. If the Applicant were to engage further acts of dishonesty, such as stealing, fraud or break and enters would cause members of the Australian community most certainly to suffer from not material losses and damages, but psychological harm.

6. Further acts of supplying dangerous drugs would most certainly adversely affect members of the Australian community physically by feeding addictions. Furthermore, should the Applicant be in control of a motor vehicle whilst under the influence of such drugs, person using the Australian carriageways would be put at risk of injury and damage.

7. Therefore, I find that if the Applicant re-offends, the nature of the harm to members of the Australian community would be serious and cause a great deal of physical, psychological and/or financial 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. It is unfortunate that the Tribunal was not furnished with sound clinical evidence in relation to the risks of recidivism with respect to the Applicant. Whilst he professes that he will not reoffend and that this is the wake-up call he needed, I can only assume that this is what has been promised previously when he was given a warning and then when his cancellation was revoked.

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

9. The Applicant has undertaken an 8 hour in duration Alcohol and Drug Awareness course. He provided a 6-page handwritten summary of the contents of that course. He has also provided a Certificate of Personal Achievement for a Low Intensity Substance Intervention Course conducted by the Salvation Army, a 2 day Stepping Forward Parenting Program course, and a Low to Moderate Intensity AOD Intervention Course undertaken in 2015 in Woodford Correctional Centre.[24]

   [24] Exhibit 4, Applicant’s evidence– Witness Statements.

   (iii) Conclusions about risk

10. In the circumstances and given the Applicant’s pattern of continued offending over a long period of time in this country, I find that there is nothing before me to provide any comfort or confidence in the Applicant’s assertions that he does not pose a risk of recidivism. This is particularly so given the paucity of rehabilitation undertaken coupled with the lack of clinical evidence in relation to risk.

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

11. 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.”

12. Reference to this paragraph is made only for the sake of completion as the application before me does not involve a refusal of a grant of a visa to a non-citizen. It involves an application for the  revocation of a mandatory cancellation of a visa. Therefore, this sub-paragraph is not relevant to the present case..

    Conclusion: Primary Consideration 1

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

    (a)I find the nature and gravity of the Applicant’s offending in Australia has been serious;

    (b)I find that in the event that the Applicant were to re-offend, the harm to members of the Australian community would be serious and would involve psychological, physical and financial to  his victims; and

    (c)I assess the Applicant’s risk of recidivism as high considering the limited steps taken by the Applicant to engage in rehabilitation throughout his long criminal career and the lack of cogent and reliable clinical evidence in relation to the risk.

14. On the evidence before me in relation to Primary Consideration 1, the level of weight against revocation of the mandatory cancellation of the Applicant’s visa is determinative.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

15. 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.

    Conclusion: Primary Consideration 2

16. For the reasons given above with respect to the issue of Family Violence, coupled with the post hearing email from the Applicant’s ex-wife who was the aggrieved for the purposes of the domestic violence and breach convictions, I give little to no weight to Primary Consideration 2 of the Direction.

    Primary Consideration 3: The best interests of minor children in Australia

17. 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.

18. 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

19. 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’s evidence is that he has 1 child and is involved in some form or other in the lives of 2 others. Those minor children are:-

    ·A, the natural child of the Applicant aged 12;

    ·M and P, the Applicant’s god-daughters ages unknown; and

    ·K, a child of one of the Applicant’s previous partners, aged 13.

    The parties’ respective contentions

20. The Applicant gave oral evidence that his son; A is autistic and lives with his mother and that the child only lived with him when he was a baby up until the Applicant went to prison. The child has not lived with the Applicant since. On the evidence from the Applicant, he had enjoyed having time with A up until on one occasion the Applicant forgot to give the child his medication. However, after that incident the child’s mother has refused to allow contact as she lost trust in the Applicant’s ability to care for the child. At the hearing, and in his written submissions, the Applicant states that he has contact with Aden by phone on a regular basis through Messenger. He also states that, should he be released into the community, he would seek orders for “permanent contact” with A. Whilst this may be the Applicant’s wish, there was no material placed before this Tribunal to indicate any plans or agreement from the child’s mother stating that she would be agreeable to any arrangements with the Applicant in relation to A spending time with him on a “permanent” basis. Furthermore, the Applicant stats that he has assist the child’s mother financially when the need arises.

21. There is no question as to the good intentions the Applicant has in relation to the future with his son and that he harbours very strong affection for A. However, it is difficult to see how those plans can be realised without any evidence from A’s mother in relation to the role, if any, the Applicant plays in A’s life. The Applicant stated that he is currently building a car with A, something which is not clear as how this can be so given that he has been incarcerated and is now in detention. On his own oral evidence, the Applicant’s only contact is by phone and by Messenger. There is no contention that the Applicant plays a parental role in the life of his son at present or in the past except for a short period of time when A was a baby. Furthermore, the extensive periods of the Applicant’s incarceration must have impeded his ability to advance his role as a parent to this child.

22. In relation to the contention that the minor children M and P, the Applicant’s godchildren would be adversely affected should he not be permitted to remain in Australia, on his own evidence, he has spent limited time with these children due to the lengthy time he has been incarcerated since 2012 and in detention. Whilst he may have financially contributed to these children’s  needs in terms of school materials, his absences from the community and these children’s lives have been long. In addition, the Applicant does not content that he plays a parental in the lives of these children. If he has been able to maintain his relationship from the confines of his incarceration and detention, presumably he will be able to do so from New Zealand as well.

23. With respect to the child K, on the Applicant’s evidence she lives with her mother in New South Wales. Given the various parole conditions the Applicant has been subject to he has not been able to travel to visit her. There is not contention by the Applicant that he maintains a parental role with this child despite that she calls him Dad. Again, if there is a relationship based on phone contact, there is not reason why this relationship cannot be maintained in the same fashion. Particularly, with the use of audio-visual technology which both will have access to.

24. Apart from the Applicant’s evidence, this Tribunal did not receive evidence from A’s mother or Mi and P’s father in relation to how the absence of the Applicant from Australia would affect his daughters.

    Findings in relation to the relevant minor children

25. Whilst this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa, particularly so in relation to the Applicant’s son A. The other named children have maintained a relationship with the Applicant by electronic means and can continue to do so were he to be in another country.

    Conclusion: Primary Consideration 3

26. I have carefully considered the factors in paragraph 8.3 of the Direction as they related to the identified minor children, and in particular those that relate to the  Applicant’s son A. Having regards to the cumulative aspects of the relevant sub-paragraphs in paragraph 8.3(4) of the Direction, I find that  Primary Consideration 3 weighs in favour of revocation of the cancellation of the Applicant’s visa  consideration, I give some weight in favour, but is not determinative, of revocation of the cancellation of the visa.

    PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

27. In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.

28. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)acts of family violence; or

    (b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)worker exploitation.

29. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

30. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

31. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR  v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[25]

    [25] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

1. Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

   Analysis – Allocation of Weight to this Primary Consideration 4

2. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:

3. The Applicant’s varied and long criminal history evidences the unquestionable fact that he  has breached the Australian community’s expectations by repeatedly offending against Australian laws. It follows that the Australian community , in the main, expects that the Government would not permit him to remain in Australia.

4. In addition to the assistance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2), provides, inter alia, that a visa cancellation or non-revocation of a mandatory cancellation of a visa may be appropriate simply based on the nature of the character concerns or offences such that the Australian community would expect that the person should not continue to hold a visa. In particular, the Australian community expects that the Government should cancel the visas of persons who have committed offences as reflected at paragraph 74 above.

5. Earlier I have dealt with the issue of domestic violence and, for the reasons, given have allocated little weight to those offences which I won’t repeat here. However, the offending in relation to the Supply of Dangerous Drugs, in my view, targets those members of the community whose additions render them vulnerable to this type of offending. In addition, the Applicant’s  long history of stealing and dishonesty offences are of such a serious nature that enliven the provisions of paragraph 8.4 of the Direction. The Applicant’s offending, therefore, means that the Australian community expectations are that the Government can and should cancel the Applicant’s visa.

   In the final determination of the Australian community’s expectations, I am guided by the principles in paragraphs 5.2(4) and (5) of the Direction which are as follows:-

   (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 Australia 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[26];

   (c)Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in Australia most of their live s[27];

   (d)the nature of a non-citizen’s conduct or 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[28].

   [26] Paragraph 5.2(4) Direction 90

   [27] Ibid

   [28] Paragraph 5.2(5) Direction 90

6. With respect to (a) the Applicant had a permanent visa. Hence this paragraph does not apply to him.

7. With respect to (b) the Applicant is a 55 year old man who came to Australia in 1992 when he was approximately 30 years of age. He professes to have been involved in remunerative employment and enjoyed a steady work history in Australia throughout his time here. Apart from the Applicant’s oral evidence to that effect, no evidence was furnished to show the veracity of these allegations. The Applicant has spent considerable time in prison, which must have impeded, to an large extent, his contributions to the Australian community. Therefore, the Australian community’s tolerance is not lowered by this principle.

8. With respect to (c) as mentioned above, the Applicant has been in Australia since he was 30 years of age which is 5 years shy of half of his life. Ordinarily, this factor would raise the Australian community’s tolerance of criminal or other serious conduct by the Applicant.

9. With respect to (d) I am of the view that this Applicant is a serious risk of re-offending based on the lack of any clinical report coupled with the limited attempts at rehabilitation as discussed above and underpinned by the fact that he has been the subject of a previous revocation of a mandatory cancellation as a result of criminal offending only to continue to re-offend with increased degrees of seriousness.

   Conclusion: Primary Consideration 4

10. Primary Consideration 4 carries a considerable amount of weight against revocation.

    Other Considerations

11. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

    Other Consideration (a): International non-refoulement obligations

12. The Applicant makes no claim pursuant to this consideration nor is there any relevance in the present case.

    Other Consideration (b): Extent of Impediments if Removed

13. 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.

14. The Applicant is a 55 year man who has lived in his home country of New Zealand up until the age of 30. There is no evidence before me to indicate that he suffers from ill-health. There are no language or cultural barriers that he would encounter in New Zealand, a country that enjoys similar social, medical and/or economic support to that of Australia.

    Other Consideration (c): Impact on victims

15. 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.

16. The Respondent in this case has not led evidence in relation to the impact, if any, the Applicant’s continued stay in Australia would have on his victims. Without such evidence, I would only be speculating as to the impact on any of the Applicant’s offending has had on any of its victims.

    Other Consideration (d): Links to the Australian Community

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

18. 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)The strength, nature, and duration of ties to Australia

19. 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

20. This initial exercise requires me to identify the Applicant’s immediate family in Australia. As previously mentioned in these Reasons, the Applicant has his birth mother (adoptive mother is in New Zealand), his birth father, his brother and son in Australia. The Applicant’s birth mother gave evidence as to how difficult it would be should the Applicant be required to leave Australia. This Tribunal also hear evidence from Ms Raquel Tonga[29], who claimed to be the Applicant’s aunt, although as it turned out she is a longstanding friend of the family.

    [29] Exhibit 3, Applicant’s evidence – Letter of Support

21. There was little evidence adduced by the Applicant as to the nature of the relationship he now has with his blood family. His mother claims to remain in regular contact but it was not clear how regular this is or was throughout the various period that he has been in prison. Furthermore, the Applicant gave evidence that he was going to donate a kidney to his birth mother but when this topic was canvassed, his mother said that it was not needed at this stage and that she had been given medical evidence that a transplant may be necessary sometime in the future but not at this stage.

22. The evidence of Ms Tonga was that the Applicant has always been very supportive of her and that she had recently had an accident that had rendered her in need of assistance. It was both Ms Tonga’s evidence and that of the Applicant that he would assist her with her care and some building repair work around her house. It is difficult to see how the Applicant would be in a position to do this and also put himself in a position to be able to care for his son, if his son’s mother would agree to a permanent contact or time with regime, at the same time.

    2. Strength, nature, and duration or ‘other ties” – length of residence

23. 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.

24. 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.

25. The Applicant first came before the Australian judicial system at the end of June 1997. He had already committed a number of reasonably serious offences in New Zealand (some 15 convictions) dating back to 1985. After the first offence in Australia in 1997 for Wilful and Unlawful damage to property in the night-time and Assault Police, there was a period of a little over 2 years without offending. Then in late 1999 he was convicted  of an offence with no further offending until 2005 when a series of offending commence on an annual or biannual basis and involving ever increasing seriousness in the nature of the offences. This culminated in the last suite of offences for which he received a period of some 2 years and 6 months imprisonment.[30]

    [30] Ibid, n18.

26. The second of the two tempering sub-elements compels an assessment of the extent of the Applicant’s positive contributions to the Australian community. As mentioned previously, the Applicant claims to have maintained a strong work history in Australia. However, no evidence other than his own evidence was adduced. He claimed to have worked as a Ships Plumber for Brisbane Ship Works and self employed as a plumber. He also claims to have “employed people with Fastway Courier x 3” and appears to have plans to start a new business called Zenith Marine. Again, there is no hard evidence of these contentions before this Tribunal other than what has been provided in question 11 of the G Documents, at G2, pages 182-183.

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

27. The Applicant claims to have strong social ties to M and P’s family as mentioned above. There was little evidence led as to what other social ties the Applicant has in Australia apart from those mentioned above.

    (2)    Impact on Australian business interests

28. 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”.

29. The Applicant claims to have a financial interest in a takeaway shop in Corryong, Victoria. He claims that if he were forced to leave Australia he would ”pull out of the business”. Again, no evidence of his ownership of this business was provided nor is there any evidence of financial of the business or how many people the business employs was provided. 

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

30. Referring to the first part of the Other Consideration, I am of the view that the totality of the evident directs me to the allocation of some weight in favour of the Applicant. As to the second part of the Other Consideration, given the  nature and paucity of evidence in respect to the business the Applicant alleges he owns or has an interest in, I am unable to give any weight to this Consideration. Overall, there is some weight, but not determinative, in favour of the Applicant.

    Finding: Other Considerations

31. 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: some weight in favour of revocation but is not determinative.

    CONCLUSION

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

32. 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.

33. 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 determinative level of weight against revocation

    ·Primary Consideration 2:  carries little to no weight against revocation

    ·Primary Consideration 3: weighs moderately, but not determinatively against revocation; and

    ·Primary Consideration 4: carries considerable weight against revocation.

34. I have outlined the weight attributable to the Other Considerations and find that there is nothing in the material before me or on the evidence that outweighs  Primary Consideration 1 .

35. A holistic view of the evidence relevant to the Primary and Other Considerations in Direction 90, therefore, favours the non-revocation of the Applicant’s visa cancellation.

36. Consequently, I find no reason to revoke the cancellation decision of 19 October 2022.

    Decision

37. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 27 July 2022 to not revoke the cancellation of the Applicant's visa.

I certify that the preceding 115 (one hundred and fifteen)  paragraphs are a true copy of the reasons for the decision herein of Member A Julian-Armitage

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

Associate

Dated: 16 December 2022

Dates of hearing:

Date of final submissions:

4 and 6 October 2022

14 October 2022

Applicant:

In person

Solicitor for the Respondent

Hannah Anderson (Clayton Utz Lawyers)

Annexure A Exhibit Register

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
1	Section 501G documents (G1 to G9 paged 1 to 285)	-	10 August 2022
2	Respondent Statement of Facts, Issues, and Contentions (paged 1 to 25)	12 September 2022	12 September 2022
3	Applicant’s evidence – Letter of Support (paged 1 to 25)	-	26 September 2022
4	Applicant’s evidence– Witness Statements (paged 1 to 13)	-	27 September 2022