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

Hoang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4139 (10 November 2021)
Division:GENERAL DIVISION
File Number:2021/5860
Re:Tuan Anh Hoang
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:10 November 2021
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated
20 August 2021 not to revoke the cancellation of the Applicant’s Visa pursuant to
s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
.......................[Sgd]................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – cannabis cultivation and possession offences – Applicant “crop-sitting” cannabis grow house – Applicant declared a drug trafficker – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – best interests of two minor children – expectations of the Australian community – extent of impediments if removed to Vietnam – links to the Australian community – strength, nature and duration of ties to Australia – Applicant is a 27-year-old man who arrived in Australia as a 16-year-old student – Reviewable Decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
Migration Regulations 1994 (Cth) reg 2.55(8)
CASES
JFSQ and Minister for Home Affairs [2019] AATA 616 at [65]
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
SCJD and Minister for Home Affairs [2018] AATA 4020
Subasinghe and Minister for Home Affairs [2019] AATA 751
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Department of Health, Commonwealth of Australia, National Drug Strategy 2017–2026
(18 September 2017)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 4(2), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(3), 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1(1), 9.4.1(2), 9.4.2(3)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
10 November 2021
BACKGROUND

The Applicant is a 27-year-old man who is a citizen of Vietnam. He arrived in Australia on 3 May 2011, as the holder of a student visa (subclass 571) when he was 16 years of age (G18/106).
Since 20 July 2017, the Applicant has held a temporary Partner Visa, being a Class UK Subclass 820 Partner visa (Visa). It is this Visa that is the subject of these proceedings (G18/104).
On 28 August 2019, the Applicant committed the offence of “possess a prohibited drug (cannabis)” (Cannabis Possession Offence). He was convicted of this offence in the Perth Magistrates Court on 5 November 2020 for which he received a fine (R2/61).
On 15 October 2019, the Applicant committed several offences which will collectively be referred to as the Cannabis Trafficking Offences because they resulted in the Applicant being declared a drug trafficker. On 22 October 2020, he was sentenced in the Perth District Court of Western Australia to a total effective sentence of three years and three months’ imprisonment (G4/27; R2/61). The offences and sentences were comprised of:
(a)“cultivate a prohibited plant with intent to sell or supply”, for which he was sentenced to a term of two years’ imprisonment (concurrent);
(b)“possession of prohibited drugs with intent to sell or supply (cannabis)”, for which he was sentenced to a term of 12 months’ imprisonment (concurrent); and
(c)“possession of a prohibited drug with intent to sell or supply (cannabis resin)”, for which he was sentenced to a term of one year and three months’ imprisonment (cumulative).
On 17 December 2020, the Applicant’s Visa was cancelled under the mandatory cancellation power in s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (G7/48–53) (Cancellation Decision). The basis of the Cancellation Decision was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision. The Applicant received the Cancellation Decision on 18 December 2020 (G7/54).
On 14 January 2021, the Applicant, through his legal representatives, requested revocation of the Cancellation Decision, made representations and submitted evidence in support of his revocation request (G8–G15).
After considering the Applicant’s revocation request, on 20 August 2021, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G3/14). This is the Reviewable Decision currently before this Tribunal.
The Applicant was notified of the Reviewable Decision in a letter dated 23 August 2021 which was emailed to his legal representative (G3). Therefore, the Applicant is taken to have received it at the end of the day on 23 August 2021 (Migration Regulations 1994 (Cth) reg 2.55(8)).
On 24 August 2021, the Applicant lodged an application in the General Division of this Tribunal seeking a review of the Reviewable Decision (G2/3–8). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the

84-day period started running from 23 August 2021, meaning that I must hand down a decision with respect to this application on or before 15 November 2021.
ISSUES
The issues that I am required to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
This application was heard on 25 October 2021. Ms Germov was counsel for the Applicant, instructed by Mr Le of TQH Lawyers and Consultants. The Respondent was represented by Ms Jones-Bolla of Sparke Helmore Lawyers.
Ms Jones-Bolla and the Applicant attended the hearing in person. Ms Germov (and her instructor Mr Le) appeared by Microsoft Teams due to being located in Melbourne.
The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant called the following witnesses, who gave evidence remotely:
(a)clinical and forensic psychologist, Mr Jeffrey Cummins;
(b)the Applicant’s wife, TKL; and
(c)the Applicant’s wife’s cousin, TVTL.
The Applicant, TKL and TVTL gave their evidence through the assistance of a Vietnamese interpreter.
I admitted the following documents into evidence at the hearing:
(a)Witness Statement of the Applicant dated 1 October 2021 with attachments TAH-1 to TAH-6 (Exhibit A1);
(b)Witness Statement of TKL, dated 1 October 2021 with attachment TKL-1 (Exhibit A2);
(c)Witness Statement of TVTL, dated 1 October 2021 (Exhibit A3);
(d)Psychological Report of the Applicant by Mr Jeffrey Cummins dated 1 October 2021, with attached brief curriculum vitae and letter of instruction dated 23 September 2021 (Exhibit A4);
(e)
Psychological Report of the Applicant’s wife by Mr Jeffrey Cummins dated 1 October 2021, with attached brief curriculum vitae and letter of instruction dated

23 September 2021 (Exhibit A5);
(f)s 501G Documents (G-Documents) numbered G1 to G19, comprising pages 1 to 129 (Exhibit R1);
(g)Summons Bundle numbered 1 to 4, comprising pages 1 to 73 (Exhibit R2); and
(h)Commonwealth of Australia (Department of Health), National Drug Strategy 2017–2026 (Exhibit R3).
The following submissions were filed by the parties prior to the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC), dated 1 October 2021;
(b)Respondent’s SFIC, dated 18 October 2021; and
(c)Applicant’s Reply to Respondent’s SFIC, dated 20 October 2021.
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)       As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with para 5.1(3) being relevant to the Reviewable Decision currently before me:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to 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 engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] 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 noncitizens 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 noncitizens 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 measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 90) must take into account the primary considerations listed in para 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).
Specifically, para 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(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.
Paragraph 9 of Direction No 90 lists other considerations to be taken into account as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations 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
Guidance as to how a decision-maker is to apply the considerations in

Direction No 90 can be found in para 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if he is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As outlined above in the “background” section, on 22 October 2020, the Applicant was sentenced in the Perth District Court of Western Australia to a total effective sentence of three years and three months’ imprisonment for the Cannabis Trafficking Offences. Each term of imprisonment was for 12 months or more. I therefore find that the Applicant does not pass the character test by virtue of s 501(7)(c) of the Migration Act. The Applicant concedes that he does not pass the character test.

Accordingly, I must now consider whether there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 90 then provides:
(2)Decision-makers should also 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.
Paragraph 4(2) of the “[i]nterpretation” section of Direction No 90 provides the following definition of “serious conduct”:
(2)In this Direction, serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence.
(Original emphasis.)
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)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;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)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).
The Applicant has been convicted of four criminal offences, being the Cannabis Possession Offence and the Cannabis Trafficking Offences.
The statement of material facts for the Cannabis Possession Offence states that the Applicant and another person were observed emptying bin bags in a dumping area for garden waste at a council skip site on 28 August 2019. Council staff requested police attend the site. Police discovered the bin bags contained the remains of a “cannabis grow house” being approximately 150 grams of cannabis and fertiliser containers (R2/67). It was not until 15 October 2019 that the Applicant was arrested for this offence, as well as the Cannabis Trafficking Offences (R2/67).
In the sentencing remarks of Barone DCJ for the Cannabis Trafficking Offences, her Honour outlined how the Cannabis Possession Offence of 28 August 2019 led to the Applicant being charged with the Cannabis Trafficking Offences. Her Honour explained (G5/32):
I am going to start with the facts in relation to what occurred on 15 October. But it all arose from a day in August, namely 28 August 2019, when you and another male went to the [name omitted] landfill, so a rubbish dump, and were seen by the workers at that rubbish dump to be dropping off some material, or unloading something from the van.
They were suspicious and called the police. And the police saw that there were, in effect, garbage bags with green leaf material in it. So as a result of that, it seems that the police started to investigate you.
That included Organised Crime conducting observations at [address omitted], which was the house that was later found to have cannabis growing inside it and drying inside it.
And the police started their investigations or observations of that house on 3 October 2019.
Her Honour continued to explain the facts concerning the “possession of prohibited drugs with intent to sell of supply (cannabis)” offence (count 1) (G5/32–33):
But on 15 October 2019, the police were observing the house … and they saw two males of Vietnamese appearance leaving the address and carrying large blue and white bags which were put into the boot of a Nissan Tiida car.
That car drove off. You were driving the car and you were the only person in the car. As you’ve heard me already say, the car was stopped by the police at the intersection of Wanneroo Road and Woodvale Drive in Wangara. And the police searched the car.
When the police searched that car or vehicle, the police located inside the vehicle two large blue and white bags in the boot of the vehicle. And those bags contained within it 16 large clipseal bags.
Inside those clipseal bags was cannabis in various amounts ranging from approximately 115 grams, or sorry, 89.7 grams through to about 353 grams. So it was divided up into 16 clipseal bags. In total, the cannabis in those bags came to 6.309 kilograms. So those are the facts in respect of the first count on the indictment.
Her Honour then outlined the facts concerning the “cultivate a prohibited plant with intent to sell or supply” and the other “possession of prohibited drugs with intent to sell or supply (cannabis)” offence (counts 2 and 3) (G5/33).
The police then took you back to that address in [suburb name omitted] and conducted a search of that address. At that address, the police found five rooms of the house which had been converted into growing rooms.
So what they saw was that there were cannabis plants being grown and that the cannabis plants in those five rooms were of various stages of growth. So in each of the rooms, the cannabis plants were at various ages, or various stages of growth.
There was also another room, a sixth room, that had cannabis drying in it. Now, the five rooms that had cannabis plants in it contained 112 cannabis plants. Those plants are the subject of count 3, so the cultivation of cannabis with intent to sell, supply.
In that sixth room, the police located and saw plant material, also material. And that was also divided up into various bags, but it was 996.84 grams. And that’s the cannabis the subject of count 2.
With respect to the seriousness of the conduct, I observe that the Applicant’s offences do not fall within the prescribed categories of conduct that may be viewed “very seriously” in para 8.1.1(1)(a) of Direction No 90. These crimes include violent crimes, sexual crimes and family violence. The Applicant’s offences also do not fall within the range of conduct that may be considered “serious”, such as causing a person to enter a forced marriage, or crimes against vulnerable members of the community (para 8.1.1(1)(b) of Direction No 90). However, paras 8.1.1(1)(a) and 8.1.1(1)(b) of Direction No 90 are not exhaustive and do not limit the range of offences that can be regarded as serious. Specifically, the Tribunal has previously recognised the harmful effects of drugs on the community (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 (SCJD) at [81]–[83]).
I note that when sentencing the Applicant on 22 October 2020, Barone DCJ stated that, “offending of this type is serious, [which] is reflected in part by the maximum penalties that apply” (G5/36). Her Honour further stated, “the seriousness of your offending is to be found in the amount of the cannabis and the number of plants, they’re both substantial numbers of plants and a substantial amount of cannabis, but also in your role” (G5/37). With respect to the Applicant’s role, her Honour noted that the Applicant was paid a wage of $800 per week for his role and was paid $50 each time he helped with a delivery (G5/34). Her Honour found that the Applicant was a “trusted employee” who assisted in the growing of the cannabis and its distribution to purchasers (G5/34). Her Honour further acknowledged that the Applicant was (G5/35):
assisting in another person’s cannabis enterprise. But as the State says, you were integral, so that means an important part, and you were trusted in that the enterprise trusted you to carry out their distribution, to communicate with their clients and to help grow and dry their cannabis.
Her Honour also commented that although the Applicant did not have a financial stake in the cannabis enterprise, and only received a wage, it was “clear” from text messages between the Applicant and his wife that he was “thinking about trying to buy into the syndicate” and had had “various discussions about how financing could be arranged” but was not able to buy into the syndicate due to a lack of money (G5/35). Her Honour later continued, “whilst your role was trusted and important and integral, that was not to the extent that you were trusted with the profits” (G5/37).
Her Honour also described the harms of cannabis to the Australian community (G5/36):
Now, offences relating to cannabis are not victimless crimes. Cannabis is a serious drug. And cannabis has been known to have a correlation between illness and its use. When one is dealing with matters involving cannabis it’s often said that to deter people, so to stop people from committing these crimes is a significant consideration.
It’s often said that people who participate in the drug distribution need to learn and understand that it cannot be treated as not being serious, and people should come to expect that terms of imprisonment often follow that type of behaviour. …
You understand the damage that cannabis can cause to people’s health and to the community and you understand that not only can drugs cause mental health issues but that it can cause people to lose their families, to commit crimes.
Her Honour’s remarks about the seriousness of the offending, and the harms caused by cannabis are factors that lend support to a conclusion that the Applicant’s Cannabis Trafficking Offences should be regarded as serious.
With respect to the sentences imposed by the courts (para 8.1.1(1)(c) of Direction No 90), the Applicant only received an $800 fine for the Cannabis Possession Offence committed on 28 August 2019, which suggests a less serious offence than if a term of imprisonment was imposed. However, for the Cannabis Trafficking Offences the Applicant was sentenced to an effective term of three years and three months’ imprisonment, with parole eligibility when he had served half of his sentence. His custodial sentence comprised (R2/61):
(a)two years’ imprisonment (concurrent) for “cultivate a prohibited plant with intent to sell or supply”;
(b)12 months’ imprisonment (concurrent) for “possession of prohibited drugs with intent to sell or supply (cannabis)”; and
(c)one year and three months’ imprisonment (cumulative) for “possession of a prohibited drug with intent to sell or supply (cannabis resin)”.
The Applicant was also declared a drug trafficker, which further indicates the seriousness of the Cannabis Trafficking Offences.
When sentencing the Applicant, Barone DCJ noted that, “[i]mprisonment is a sentence of last resort” (G5/41). However, her Honour regarded prison as being the only option in the circumstances, stating (G5/41):
Given the nature of your role and your trusted position as an employee of the enterprise in many of the important facets of the enterprise, and given the significant amount of cannabis found and plants grown in various stages, I am of the view that only imprisonment is the appropriate disposition.
Further, her Honour regarded the Applicant’s Cannabis Trafficking Offences as being so serious that a custodial sentence of imprisonment was required. Her Honour stated (G5/43):
Given the seriousness of your offending, informed by the same things that I said justified or what I considered to be appropriate in relation to why a term of imprisonment was the right disposition, namely your trusted role in all parts of the growing, distribution and communicating with clients about this and also the integral role you played in the caretaking, and the need to impose a generally and specifically deterrent sentence and the lesser role given to your personal factors, and also the need to consider the seriousness of your offending, I am positively of the view that it would not be appropriate to suspend the term so you will be required to serve that term of imprisonment.
Although the Applicant received less than the maximum term of 10 years’ imprisonment or a fine not exceeding $20,000 for each of the Cannabis Trafficking Offences (G5/36), taking into account the sentence imposed and her Honour’s sentencing remarks concerning the seriousness of the offending and the appropriateness of a custodial sentence, I am nevertheless of the view that the sentence imposed also suggests that the Cannabis Trafficking Offences should be regarded as serious.
The Applicant has a short criminal history, comprising four convictions arising from his role at the cannabis grow house. Although this role was over a 10-month period, I do not consider that he has offended frequently or that there is any trend of increasing seriousness. In this regard, I note that the Applicant was arrested for all the offences on the same date, being 15 October 2019 (para 8.1.1(1)(d) of Direction No 90).
I further note that the Applicant pled guilty to the Cannabis Trafficking Offences, which resulted in a 20% discount on his sentence, although not at the first opportunity (G5/39). This nevertheless would have saved some of the Court’s time and resources. The Applicant only has four convictions arising from his role at the cannabis grow house and is currently serving a sentence of imprisonment. Although, as a result, there is likely to have been some burden on the resources of the police, the courts and corrective services, I do not consider that there is a cumulative effect of repeat offending, especially given that the Applicant only has four convictions (para 8.1.1(1)(e) of Direction No 90).
I must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 90). There is no evidence that the Applicant has provided false or misleading information to the Department, and so this consideration is not relevant.
Paragraph 8.1.1(1)(g) of Direction No 90, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. The Applicant has not received any warnings of this nature. The only warning he received was contained in a fact sheet which he received with a letter dated 20 July 2017 advising him that his partner visa had been granted. The fact sheet warned, under the heading “Character Requirements”, that the Applicant’s visa may be cancelled for a number of reasons, including if he had a “criminal record” or behaved “in a way that is a risk to somebody in the Australian community” (A1/TAH3). During cross-examination, the Applicant agreed that he knew about this “warning” (transcript/30). However, the mention of character requirements in a fact sheet is not the type of warning that is contemplated by this sub-paragraph. Paragraph 8.1.1(1)(g) of Direction No 90 contemplates the issue of a warning about potential visa cancellation once an offence has already been committed. Such a notice will often specify that the recipient’s visa is at risk of cancellation after further offences are committed (that is, this sub-paragraph contemplates reoffending after being formally warned). At the time of receiving this fact sheet, the Applicant had not committed any offences. Consequently, I do not regard this consideration as being relevant.
Although the Cannabis Possession Offence is a less serious offence, as indicated by the fine received by the Applicant, I find that the Applicant’s Cannabis Trafficking Offences are serious. In forming this view, I have considered the matters set out in para 8.1.1 of Direction No 90, which I have discussed above. These matters included the comments from the sentencing Judge, her Honour Barone DCJ, about the seriousness of the offences, the harm to the Australian community that may result from drug offences, and the custodial sentence of imprisonment imposed. I have also taken into account the Applicant’s short criminal history, which comprises only four offences arising from the one course of conduct, being his role at the cannabis grow house, there being no trend of increasing seriousness and the lack of repeat offending.
Overall, I find that para 8.1.1(1) of Direction No 90 weighs strongly against revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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 that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)

Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
I have already referred to the sentencing remarks of her Honour Barone DCJ, who detailed some of the harms of cannabis (G5/36). As I also noted above, the harms of trafficking in drugs were recognised, in SCJD, where Senior Member Cameron stated at [81]–[83]:
81.The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
82.In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
83.There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.
The Respondent also referred to the following passage from the Department of Health, Commonwealth of Australia, National Drug Strategy 2017–2026 (18 September 2017) which outlines the physical and mental health impact of cannabis use (R3/33):
In 2016, 10.4% of Australians over the age of 14 had used cannabis in the last 12 months and 34.8% had used cannabis in their lifetime. As the most widely used of the illicit drugs in Australia, cannabis carries a significant burden of disease. The use of cannabis can result in various health impacts, including mental illness, respiratory illness, and cognitive defects. In particular, cannabis dependence among young adults is correlated with, and probably contributes to, mental disorders such as psychosis.
(Footnotes omitted.)
Accordingly, I find that that cultivating, possessing and trafficking drugs supports the illicit drug trade in the Australian community. The prevalence of drugs causes harm to the community on many levels. These harms also include the perpetuation of drug-related crimes, such as violent crimes and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families. I therefore find that the nature of the harm to the Australian community should the Applicant engage in further Cannabis-related offending is potentially very serious.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).
A lengthy criminal history may, depending on the circumstances, suggest a likelihood that further offences will be committed. As I have mentioned above, the Applicant does not have a lengthy criminal history. He has only been convicted of four offences arising from his involvement at the cannabis grow house. Prior to committing these offences, the Applicant worked in hospitality and did not have a criminal history. This shows that the Applicant is capable of maintaining a law-abiding life in the community. He is, as Barone DCJ observed, “on the cusp of youth” (G5/39), or in other words, still relatively young, and has the time and the opportunity to lead a law-abiding life.
Expressing remorse can be an indication that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751). This may in turn be a factor that lowers the likelihood of reoffending.
When sentencing the Applicant for the Cannabis Trafficking Offences, Barone DCJ accepted that the Applicant understood the seriousness of his offending and the harm it could cause to the community. She stated (G5/36–37):
I understand and accept that you understand the seriousness of your offending. You’ve told me in your letter that you would like to apologise to the court and to the community for the wrong things that you did. …
You also told me that you were very scared and you felt disgusted by what you had done. And you said in your letter you were trying to change, you were trying very hard to change and be a better person.
And you said that this will be the last time that you commit any crimes and that you were going to promise to be a hardworking, constructive member of the community in the future. So I have read very carefully your letter and it’s clear you understand how serious this offending is.
Her Honour also accepted that the Applicant was remorseful. She stated (G5/39):
Now, I do also accept that you are remorseful for what you did. Your letter indicates that you are sorry. Being regretful and being remorseful are different things but I do accept that you are remorseful, because you explain in your letter to me that you understand the seriousness of your offending and the impact that cannabis can have in the community.
So I accept that you’re not just sorry you got caught, but that you are sorry that you became involved in criminal activity and that that can have an effect on everyone, including your family, those who loved you, but also the broader community.
In contrast, after hearing the evidence of the Applicant at the hearing, I perceived that the Applicant regretted his offending and the situation he finds himself in. However, I was not satisfied that the Applicant was remorseful for the reasons outlined below.
During his evidence at the hearing, the Applicant tried to minimise his offending by denying aspects of the offending and some of the findings of the sentencing Judge, Barone DCJ, concerning his involvement. For example, the Applicant said that he did not know that what he was doing was illegal until after he was arrested, that he was “just a delivery man” and that he had “the lowest role in the syndicate”. He stated that his role was a house-sitting type role, where he would go to the house at 5 pm each evening as if he was a worker returning home from work, and that he would stay until 10 pm or 11 pm and then return home. He also denied taking care of the crops and that his only involvement was “staying in the living room” to act like a person living in the house and to distract the neighbours. He stated, “from the beginning I told you I didn’t do anything except just sitting there doing nothing” and that another man, BN, “did everything”. He also denied knowing what was in the other rooms in the house. He further claimed that others would put the cannabis in his car when he did deliveries, and it was only the one occasion (when police observed him) that he had put a bag in his car himself (transcript/32–38).
Later as the hearing progressed, it emerged that the Applicant had described a different version of events to the clinical and forensic psychologist, Mr Cummins. The version of events recited to Mr Cummins was inconsistent with the Applicant’s evidence at the hearing but was consistent with the findings of Barone DCJ. Specifically, Mr Cummins, who interviewed the Applicant on 29 September 2021, and who wrote a report concerning the Applicant dated 1 October 2021 (A4), stated his understanding of the Applicant’s involvement to be as follows (transcript/75):
I was satisfied, on the basis of my interviewing of him, that he did know that he was assuming the role of a caretaker. He indicated to me he was involved in the growing of the cannabis and looking after the cannabis, in cutting the cannabis, and providing the cannabis to people higher up the chain.
In his report, Mr Cummins also noted that the Applicant stated that “at the time of becoming involved in the offending he realised that what he was doing was illegal, but did not appreciate the seriousness of his offending…” (A4, para [43]). This was different to the Applicant’s evidence at the hearing, where he stated that he did not know what he was doing was illegal until he was arrested (transcript/33).
Although I am concerned about the Applicant’s remorse and insight into his offending based on the different version of events in his evidence at the hearing, I note the Mr Cummins’ opinion that his assessment of the Applicant’s likelihood of reoffending is unchanged. After I outlined the different version of events the Applicant gave in his evidence at the hearing, the following exchange occurred (transcript/76):
MR CUMMINS:   Well, that is somewhat different to the understanding I had. I certainly thought he was there looking after the house, but he mentioned that he had some involvement with the cutting of the cannabis, and I understood him to be saying he had some involvement with the actual feeding of the cannabis. But very definitely under strict supervision.
TRIBUNAL:And so does that alter your ultimate opinion about the likelihood of reoffending then?
MR CUMMINS:   No, it does not, because that was the view I had when I assessed him.
Ms Jones-Bolla asked Mr Cummins some further questions to clarify his evidence in this regard. The following exchange indicates that Mr Cummins’ assessment of the Applicant as being a low likelihood of reoffending is somewhat qualified in that he would need to question the Applicant further. However, my understanding of Mr Cummins’ evidence was that it was the level of the Applicant’s involvement in the cannabis enterprise that was significant to his assessment of the likelihood of reoffending and that the Applicant minimising his role in the hearing had little, if any, impact on his assessment. The following exchange is relevant in this regard (transcript/77):
MS JONES-BOLLA:   Mr Cummins, I just want to follow on from the Senior Member’s questions. Just very simply put, if the applicant, hypothetically, gave you one version of events and then gave evidence to this tribunal which was minimising his offending or making it seem less than it actually was, that would change your opinion in respect of the risk of him reoffending, wouldn’t it?
MR CUMMINS:          No, not necessarily, no. I would need to question him about that. I would need to satisfy myself that what he was saying to me was fundamentally different to what he had said today to the tribunal.
MS JONES-BOLLA:   So if we hypothetically assume that it was fundamentally different, then that would change your assessment of the risk of him reoffending or the likelihood of him reoffending, wouldn’t it?
MR CUMMINS:          If that was determined it may change the risk, yes. And that would mean that what I would be then told was that his involvement was much, much more active than my understanding. At all times he indicated to me, and I was satisfied, that this was not his enterprise, he was acting under instruction and that was what I related to.
Mr Cummins noted the Applicant being a married man with two children being a protective factor. I am concerned, however, that the Applicant was married with children when he committed the offences. Indeed, a desire to provide for his family was a factor that contributed to his offending in the first place. However, Mr Cummins was also of the view that the Applicant’s offending was “reflective of his immaturity and panic and also motivated by a sense of embarrassment and shame that he had been unable to obtain employment to enable him to financially support his wife and their two children” (A4, para [47]). What does appear to have changed from the circumstances of the offending until now, is that the Applicant accepted employment in the cannabis grow house after a period of unemployment, and that he has now been offered employment in his wife’s cousin’s (TVTL’s) restaurant if he is released from custody and if he is able to stay in Australia. At the time of the offending he was apparently of the view that he did not want to rely on his family or his wife’s family for employment or assistance, but I am satisfied that the Applicant’s perspective has now changed. In his written statement, the Applicant stated (A1, para [27]):
The experience of being arrested, convicted, imprisoned and separated from my wife and children has been the worst thing to have happened to me but I have tried to take something positive from it in the sense that it has given me a higher level of maturity very quickly and made me think about how I should conduct my life and how my actions impact on my family and on the community generally.
I am also satisfied that the Applicant’s time in prison, the cancellation of his Visa, his separation from his wife and children during his time in prison, and the potential for permanent separation from them have had a deterrent effect on the Applicant. The Applicant appears to be very much in love with his wife. In his written statement the Applicant stated that, “[i]t is very hard for me to be separated from wife and children who I love very much” (A1, para [19]). The Applicant further stated that, “I fully accept I made a stupid decision in getting involved in crop sitting and regret it deeply because I did not realise the true ramifications of what I was doing, and I will have to live with the awful effects it has had on my wife and children for the rest of my life” (A1, para [23]). I also observed that during the Applicant’s wife’s evidence, the Applicant appeared genuinely distressed and I accept that he appreciates the negative effect that his offending has had on his wife and children.
I nevertheless accept Mr Cummins’ clinical opinion that the “risk” of the Applicant reoffending is “low” (A4, para [47]). Mr Cummins’ assessment was also consistent with the “Risk of Reoffending – Prison Version (RoR-PV)” assessment of the Applicant by prison assessors, who assessed the Applicant as not being recommended for criminogenic programs due to his having a “low risk” of reoffending (R2/13). I also note the Applicant’s good prison behaviour and work ethic in prison (R2/15) and that the Applicant was able to complete a period of home detention bail without incident, including by returning negative tests for drug use (G5/38; R2/52). In this regard, I also note that the Applicant does not use drugs, including cannabis, or alcohol (G5/38; A4, para [40]). This is also a protective factor because there is no likelihood of reoffending due to any relapse to drug or alcohol use.
At the hearing, Ms Germov submitted that a further protective factor is that the Applicant’s Visa is temporary, and he would need to meet the character requirements again to obtain another Visa and eventually Australian citizenship. Specifically, Ms Germov submitted that “he has every incentive not to offend again because of the status of his visa, in any case, which is a temporary one, he has to meet the character requirement and, again, citizenship” (transcript/93). Ms Jones-Bolla submitted that the Applicant acknowledged under cross-examination that he was aware of the statement in the fact sheet that accompanied his partner Visa that he must obey the law, must not engage in criminal activity and that his Visa may be cancelled if he has a criminal record, and yet he was not deterred from offending (transcript/98). However, I note that at the time of that warning, the Applicant had not committed any offences, had not been imprisoned, nor had his Visa been cancelled. I am of the view that the reality of the actual cancellation of the Applicant’s Visa has had a deterrent effect on the Applicant and that the prospect of being denied another visa on character grounds, or of cancellation of a future visa on character grounds is likely to motivate the Applicant not to reoffend.
As I have discussed above, there are some factors that weigh against the Applicant with regard to the likelihood of his engaging in further criminal conduct, including his minimising his offending at the Tribunal hearing, which suggests that he still has some progress to make in terms of his remorse and insight into his offending. However, after considering the evidence discussed above, I find that the Applicant is a low risk of committing further drug-related offences. By way of summary, the evidence which indicates this likelihood of risk includes:
(a)the Applicant’s minimal criminal history and young age;
(b)the Applicant being formally assessed by prison treatment assessors as being a low risk of reoffending and as therefore not requiring any treatment programs;
(c)Mr Cummins’ assessment that the Applicant was a low risk of reoffending;
(d)the fact that the Applicant is not a cannabis user and does not have any issues with drugs or alcohol;
(e)his separation from his wife and two children, including the prospect of permanent separation from them, and his appreciation of the impact that his offending has had on them;
(f)his offer of stable employment with his wife’s cousin, TVTL, if he is released into the Australian community; and
(g)the prospect of future visa refusal or cancellation on character grounds, or eventually the denial of Australian citizenship on character grounds, if he were to reoffend.
Although the risk of the Applicant reoffending is low, as I found above at para [66], the harm that would be caused to the Australian community if the Applicant commits further cannabis-related offences is potentially very serious. Accordingly, I find that the principle in para 5.2(4) of Direction No 90 applies, which provides in part that:
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 … revoking a mandatory cancellation.
Therefore overall, I find that this part of the first primary consideration weighs moderately to strongly against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 90
I have found that para 8.1.1(1) of Direction No 90 weighs strongly, and para 8.1.2 of Direction No 90 weighs moderately to strongly against the revocation of the Cancellation Decision. My overall finding with respect to primary consideration 8.1, being the protection of the Australian community, is that it weighs strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)

Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen. The Applicant has not committed any offences involving family violence, nor has he engaged in any conduct that could be characterised as family violence. Therefore, this consideration is not relevant.
The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction No 90)
Direction No 90 requires decision-makers to determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first two paras of 8.3 provide:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
Paragraph 8.3(4) of Direction No 90 sets out the factors that the decision-maker must consider:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
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.
The relevant children (G10/73) whose interests I must consider are the Applicant’s:
(a)five-year-old daughter, H (who will turn six years old in late November) (G15/98); and
(b)three-year-old son, A (G15/99).
Most of the evidence concerning the children was given about them jointly.
Evidence relating to H and A
In the Applicant’s revocation submissions, made on his behalf by his legal representatives, on 14 January 2021, the following submissions were made about the children (G8/59):
The Applicant has full custody together with his wife of their two children ([H] and [A]). [H] is currently 5 years old and [A] is aged 2. [H] will be starting Prep this year.
The Applicant’s role with his children is but not limited to: providing financial support, taking his children to childcare, preparation of meals, feeding them, changing them, educational and exercise activities. In other words, sharing all the usual parental duties of a parent with his wife.
The applicant has a close relationship with his children and is instrumental to their growth and development. has [sic] often told their mother about how much they missed their father and how his absence has affected them.
In his witness statement, the Applicant stated (A1, paras [25]–[26]):
My wife and children are my world, and I could not bear to be permanently separated from them. My wife and children visited me regularly when they lived in Perth but return to New South Wales because she had no friends or family support in Perth, and we had arranged for me to be transferred to a New South Wales prison.
If my visa cancellation is not revoked, my wife and children will not return to Vietnam to live with me because [the Applicant’s wife] and I want the best possible future for the children, and we would not want to compromise that in any way. Telephone and video contact is no substitute for in person contact with your wife and children. My children will eventually learn the true reason that I am separated from them, and I am deeply ashamed of what I have done and worried about how my children will view me in the future.
In her witness statement, the Applicant’s wife stated that the children are in good health. She stated that H attends a catholic primary school and that A attends childcare (A2, para [9]). She stated that the children think that the Applicant “is away for work and do not know he is in prison”. This is because they are too young to understand and she and the Applicant want to protect them for as long as possible (A2, para [10]). The Applicant’s wife also stated (A2, paras [14], [17]):
The children and I speak with [the Applicant] several times a day and we have video calls with him twice a week. However, this is a poor substitute for having a husband and father there in person.
This situation has caused me a great deal of psychological distress and I have been getting psychological counselling in order to help manage my stress – mainly so that it does not impact on our children. …
If the Tribunal does not revoke the cancellation of his partner visa, [the Applicant] would have to leave Australia. Although the children and I would be able to visit him in Vietnam once the COVID travel restrictions are lifted, we have decided that the children and I would remain in Australia as this is the best possible future for them. I am managing to survive on Centrelink payments and support from my family in Australia. It will not be easy for us to travel overseas often but most importantly, we could not stay for any length of time due to the children having to be in school. We are both very worried about how we would handle the situation when they have to learn the reason why [the Applicant] left Australia. We are concerned about the psychological effect of them feeling that their father did not care enough about them and abandoned them.
In the Applicant’s evidence at the hearing, he clarified that he saw the children once a week after he was taken into custody, but since May this year when his wife and children returned to New South Wales, he communicates with them twice a week by video calls through an iPad (transcript/15) and speaks with them on the telephone daily (transcript/16). The Applicant says that he is fearful that the children will be psychologically affected if he is returned to Vietnam (transcript/17–18).
I note the Applicant’s evidence that his wife and children live in the house that the Applicant’s father bought for the Applicant and his wife for a wedding present and that there is no mortgage on the house (transcript/39–40). The Applicant’s wife is not working and is using her Centrelink payments to provide for the children (transcript/40).
I also note Mr Cummins’ evidence that it would be “extremely difficult, if not impossible” for the Applicant to maintain a parental relationship with his children if he were returned to Vietnam (transcript/66–67).
The Applicant’s wife’s evidence at the hearing was that the Applicant is “a very good father” who is “loving” and “caring” (transcript/80). She has some limited assistance from her family in New South Wales (her uncle and cousins) in caring for the children (transcript/80–81; 83).
The Applicant’s wife’s cousin, TVTL, who has offered the Applicant employment in his restaurant stated in his witness statement (A3, paras [6]–[7]) that:
Our family was not on good terms with [the Applicant] for a while because we thought he was being lazy and not looking hard enough for work after he lost his job. I have reached out to [the Applicant] because I am very concerned about [the Applicant’s wife] and the children being left without a father. I know that they do not plan to live in Vietnam if [the Applicant] has to return there. [The Applicant’s wife] has been very depressed and stressed.
Evidence relating to H
I also note the following evidence regarding the Applicant’s daughter, H.
In his statutory declaration dated 31 August 2016, which was submitted with his partner Visa application, the Applicant stated with respect to his daughter H (G14/90):
Being first time parents was a challenge but I loved every bit of it. The experience we shared learning how to care for our daughter was a very special memory to me. Every night we took turns in getting up when I daughter cries or need a change of nappy. We did everything for our daughter together.
The Applicant’s wife gave similar evidence concerning H in her statutory declaration for the Applicant’s partner Visa application which was also dated 31 August 2016 (G14/94):
Even though [the Applicant] still works and studies, he is such a hands on father and he is just really good with our daughter. He basically lived with me during this time but as we were still trying to get the hang of caring for our baby we did not have the time to move all our stuff in together so [the Applicant] would travel back and forth from his home to mine but he spent most nights with me. We took turns to get up in the middle of the night when our daughter cries and we just help each other do everything.
The best interests of H and A
Paragraph 8.3(3) of Direction No 90 provides:
(3)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.
As mentioned above, most of the evidence regarding the interests of the children concerned H and A jointly. I have therefore considered them together, and in doing so, I have explained where their interests differ.
The Applicant is the biological father of H and A. I accept that he was a primary caregiver for the children when they were infants and that the Applicant shared caring responsibilities for the children with his wife. I therefore find there is a strong parental relationship (para 8.3(4)(a) of Direction No 90).
I accept that the Applicant is likely to play a positive role in his children’s lives in the future. He is a loving and caring father who misses his children and speaks to them on video calls twice a week and on the telephone daily. He has not told his children about his situation because he wants to protect them. There is a substantial amount of time until the children turn 18. H is nearly six years of age and A is only three years of age. Therefore, there is approximately 12 years and 15 years respectively until the children turn 18, which is a substantial amount of time for both children to grow up without the presence of their father during their formative years. I find that the children would benefit from having their father physically present and involved in their lives until they turn 18 (para 8.3(4)(b) of Direction No 90).
It does not appear that the Applicant’s prior conduct has had a direct negative impact on either H or A. If the Applicant is permitted to remain in Australia, H and A will again face separation from their father if he reoffends after he is released into the community, which may have a negative impact on them (para 8.3(4)(c) of Direction No 90).
Given the Applicant’s role as a loving and involved father to H and A, I find that the ability to maintain contact with them by other means, such as by telephone or the internet, would be a poor substitute for the Applicant being physically present and involved in their lives (para 8.3(4)(d) of Direction No 90).
H and A live with their mother, the Applicant’s wife. There is no evidence that they are not well cared for by their mother, although I note that the children’s mother is struggling psychologically with the Applicant’s situation. I am concerned that if the Applicant is removed from Australia, the Applicant’s wife’s mental health will further deteriorate, which may impact detrimentally on her ability to care for the children. If the Applicant is permitted to remain in Australia, the Applicant’s wife’s mental health, which appears to be linked to his predicament, is likely to stabilise, and she will be able to better care for the children. I find that H and A would benefit from having both parents physically present and involved in their lives (para 8.3(4)(e) of Direction No 90).
There are no known views of the children before me. As I have mentioned above, the children are very young and think the Applicant is away working, although there is evidence before me that they are missing him (para 8.3(4)(f) of Direction No 90).
There is no evidence that H or A has been or are at risk of being abused or neglected by the Applicant in any way (para 8.3(4)(g) of Direction No 90). Similarly, there is no evidence that H or A have suffered any physical or emotional trauma arising from the Applicant’s conduct (para 8.3(4)(h) of Direction No 90). To the contrary, the evidence shows that the Applicant is a loving father to H and A.
After considering the above factors, I find that revocation of the Cancellation Decision is in the best interests of H and A and their interests weigh strongly in favour of the revocation of the Cancellation Decision.
Expectations of the Australian community (paras 8(4) and 8.4 of Direction No 90)
I must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in para 8.4 of Direction No 90, which provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, 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 is 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.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)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.
Thus, I must give effect to the “norm” stipulated in para 8.4(1) of Direction No 90, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
As is evident from the reference to the “norm” in para 8.4(1) of Direction No 90, I am being told unequivocally what the community’s expectations are. Further, para 8.4(4) of Direction No 90 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers, such as myself, are directed to proceed based on the Government’s views about community expectations without independently assessing them. In this regard, I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about what the Australian community’s expectations are with respect to certain types of conduct is then given in para 8.4(2) of Direction No 90. That paragraph states that the Australian community expects that the Australian government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.4(2)(a)–(f). The Applicant’s offences do not fall within the types of conduct listed in those sub-paragraphs.
Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

As I have found above, the Applicant’s Cannabis Trafficking Offences are serious. I therefore find that in committing these offences, the Applicant has engaged in serious conduct in breach of the expectation of the Australian community that non-citizens will obey Australian laws while in Australia. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.4(1) of Direction No 90).
I am also guided by the principle contained in para 5.2(4) of Direction No 90, which provides that 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 contributing to the community for only a short period of time. This consideration applies to the Applicant. Firstly, the Applicant’s Visa is a temporary one. Secondly, he came to Australia as a
16-year-old student in 2011, has engaged in some employment, but commenced offending in approximately January 2019, at which time he began crop-sitting at a cannabis grow house. He has been serving a term of imprisonment since 9 September 2020. I therefore find that the Applicant has only contributed to the Australian community for a short period of time.
Thus, on balance, I find that para 8.4 of Direction No 90, being the expectations of the Australian community, weighs very strongly against the revocation of the Cancellation Decision.
Other considerations (para 9(1) of Direction No 90)
Paragraph 9 of Direction No 90 provides:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations 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
International non-refoulement obligations (paras 9(1)(a) and 9.1 of Direction No 90)
I am required to consider whether Australia’s international non-refoulement obligations arise on any of the submissions, materials or evidence before me (para 9.1 of Direction No 90). The Applicant did not make any submissions that Australia’s non-refoulement obligations are engaged. I am satisfied that no such considerations arise, and I therefore find that this consideration is not relevant in this matter.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
Paragraph 9.2(1) of Direction No 90 provides:
(1)Decision-makers must consider 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 substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is 27 years of age. He has no known health issues.
He came to Australia as a 16-year-old student. At the hearing, he was assisted by a Vietnamese interpreter. I find that there are no language or cultural barriers that would impede the Applicant should he be removed to Vietnam. The Applicant’s movement records also indicate that he has travelled back to Vietnam each year, and so it is not an unfamiliar country nor a country that he has ceased contact with since his arrival in Australia (G18).
There is no evidence to suggest that the Applicant would not be able to establish and maintain basic living standards (in the context of what is generally available to other citizens of Vietnam).
Additionally, the Applicant’s parents reside in Vietnam. They have provided him with financial support in Australia, including by buying him a home in New South Wales (which according to the Applicant is valued at approximately $1,000,000) when he married his wife. The Applicant’s parents also paid for the $800 fine he received on 5 November 2020 for the Cannabis Possession Offence and are funding his legal costs for these proceedings. There is no evidence that they would not be able to provide him with some support if he is returned to Vietnam. The Applicant’s father in law, and brother in law also reside in Vietnam.
Although the Applicant is likely to suffer emotional hardship if his wife and children do not relocate to Vietnam with him, I am reasonably satisfied that there are minimal to no impediments that the Applicant would face establishing himself in Vietnam and maintaining basic living standards. Therefore, I find this consideration to only weigh minimally in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
Paragraph 9.3(1) of Direction No 90 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant’s offending or any family members of victims. Consequently, this consideration is not relevant.
Links to the Australian Community (paras 9(1)(d) and 9.4 of Direction No 90)
Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1(1) of Direction No 90 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Further, para 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has been in Australia for approximately 10 years. He arrived in Australia to complete his high school studies as a 16 years old teenager in 2011 pursuant to a student visa. He commenced a hospitality course in Sydney in 2014, which he did not complete. He worked in the hospitality industry between 2015 and 2019. He has therefore made some, albeit minimal, contributions to the Australian community through his studies and employment. However, I find that any contributions are outweighed by the Applicant’s offending.
It was not until approximately January 2019, around seven years after he arrived in Australia, that the Applicant commenced crop-sitting in the cannabis grow house which led to the Cannabis Possession Offence and the Cannabis Trafficking Offences, and so he did not offend soon after arriving in Australia.
The Applicant’s main family ties to Australia are his wife and children. Other than his wife’s family members in New South Wales (an uncle and four cousins) (A2, para [8]), the Applicant does not have any family in Australia (transcript/14–15). He met his wife on New Years’ Eve in 2014, and they married in July 2016 (A2, para [6]). She, like the Applicant, was born in Vietnam and came to Australia on a student visa in November 2011, but is now an Australian citizen (A2, paras [3], [7]). As noted above, the couple have two children, a daughter aged five (who will turn six in late November), and a son, aged three years (G15/98–99).
The Applicant’s wife gave evidence that if the Applicant is removed from Australia, she and the children would not relocate to Vietnam to be with him. In her written statement, the Applicant’s wife stated that, “we have decided that the children and I would remain in Australia as this is the best possible future for them” (A2, para [17]). She gave similar evidence at the hearing. The Applicant’s wife returned to live in Sydney in May 2021 where she has some family support (A5, para [12]–[14]). In her written statement, the Applicant’s wife also stated that she is experiencing psychological distress because of the Applicant’s situation and that she had been getting counselling (A2, para [15]). There is evidence from a clinical psychologist dated 8 September 2020 stating that she was experiencing anxiety about the prospect of the Applicant receiving a custodial sentence (G13/87). Mr Cummins’ opinion was that the Applicant’s wife was suffering from a major depressive disorder and that her current symptoms included “disturbed sleep, negative ruminative thinking, worry and anxiety” (A5, para [48]). I accept Mr Cummins’ opinion that the Applicant’s wife’s “mental health would inevitably deteriorate and very significantly so if her husband were deported back to Vietnam” (A5, para [54]). I have already considered the negative impact on the Applicant’s Australian citizen children if they were to be separated from their father above under the primary consideration of the best interests of minor children in Australia, which weighed strongly in favour of revocation of the Cancellation Decision.
The Applicant also has an offer of full-time employment from his wife’s cousin, TVTL, in his restaurant in Sydney, which indicates a further, albeit minimal, tie to Australia.
I accept that the Applicant has very strong ties to his wife and minor children, but otherwise, his ties to Australia are not strong. He also has some ties to Australia through his wife’s relatives, including TVTL. I find, however, that the Applicant’s time in the Australian community is not of a long duration, and that he has made limited contributions through study and employment. Overall, I find that para 9.4.1 of Direction No 90, being strength, nature and duration of ties to Australia, weighs only slightly in favour of revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and I am satisfied that it is not relevant to this application.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
For the reasons set out above, I made the following findings with regard to the primary considerations in Direction No 90:
(a)the protection of the Australian community primary consideration weighed strongly against the revocation of the Cancellation Decision;
(b)the family violence consideration was not relevant in this case;
(c)the best interests of the Applicant’s minor children, H and A, weighed strongly in favour of the revocation of the Cancellation Decision; and
(d)the expectations of the Australian community weighed very strongly against the revocation of the Cancellation Decision.
With respect to the other considerations, my findings were:
(a)international non-refoulement considerations were not relevant in this matter;
(b)the extent of impediments if removed consideration weighed minimally in favour of revocation of the Cancellation Decision;
(c)other than as discussed under the protection of the Australian community and the expectations of the Australian community primary considerations, the impact on victims consideration was not relevant; and
(d)regarding the links to the Australian community consideration, the strength, nature and duration of the Applicant’s ties to Australia, weighed slightly in favour of revocation of the Cancellation Decision. The impact on Australian business interests consideration was not relevant.
I find that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh the primary consideration of the best interests of the Applicant’s two minor children. Although the strength, nature and duration of the Applicant’s ties to Australia consideration also weighs slightly in favour, and the other consideration of extent of impediments if removed weighs minimally in favour of revocation of the Cancellation Decision, they do not do so to the extent that I can be satisfied that there is another reason to revoke the Cancellation Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated

20 August 2021 not to revoke the cancellation of the Applicant’s Visa pursuant to

s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 147 (one hundred and forty seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

....[Sgd]....................................................................
Associate
Dated: 10 November 2021

Date of hearing: 25 October 2021

Counsel for the Applicant:

Solicitors for the Applicant:

Ms R Germov

Mr J Le, TQH Lawyers and Consultants

Counsel for the Respondent: Ms D Jones-Bolla, Sparke Helmore Lawyers

[2021] AATA 4139

10 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction