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

Hone & Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5211 (24 December 2020)
Division:GENERAL DIVISION
File Number: 2020/6023
Re:Tu Matauenga Hone
APPLICANT

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

DECISION
Tribunal:Senior Member P. Q. Wood
Date:24 December 2020
Place:Melbourne

The decision under review is affirmed.
................................[sgd]........................................
Senior Member P. Q. Wood
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Subclass 444 Special Category (Temporary) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – consideration of Australia’s international non-refoulement obligations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member P. Q. Wood
24 December 2020
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 24-year old year old citizen of New Zealand. In September 2012, when he was 16, he moved to Australia. The most recent visa granted to him was a Class TY Subclass 444 Special Category (Temporary) visa (“visa”).
On 5 April 2019, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test because he had a substantial criminal record and he was serving a full time custodial sentence.
The Applicant sought revocation of the cancellation decision. On 2 May 2019, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”). On 30 September 2020, the Respondent refused to revoke the cancellation of the Applicant’s visa.
The Applicant subsequently lodged an application for review in this Tribunal on 2 October 2020. The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
The hearing of this application proceeded on 10 December 2020. The Tribunal had the benefit of hearing oral evidence via video conference from the Applicant, his partner ML and his previous employer Mr Robert Heusdens. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
For the reasons below, the Tribunal has determined that the Minister’s delegate’s decision to refuse to revoke the cancellation of the Applicant’s visa is the correct decision and the Tribunal affirms that decision.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
The Applicant has made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[1]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[2]
[1] [2018] FCAFC 151.
[2] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[3]
[3] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 16 January 2018, the Applicant was sentenced in the Supreme Court of Queensland to a term of imprisonment of eight years for the offence of trafficking in dangerous drugs (which took place between 19 May 2015 and 21 May 2015).
As the custodial term imposed was ‘a term of imprisonment of 12 months or more’, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in s 501(7)(c) of the Act. The Tribunal therefore finds that the Applicant does not pass the character test pursuant to s 501(6)(a) of the Act. It follows that the Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[4] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[5]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[4] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[5] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
The Tribunal notes and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[6]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[6] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
Witness evidence
The following is a summary of the evidence before the Tribunal including evidence of witnesses who appeared before the Tribunal. The evidence referred to below includes evidence provided in written statements submitted to the Department and the Tribunal and evidence given by the witnesses at the hearing in response to questions in cross examination and from the Tribunal.
The Applicant
The Applicant described a difficult childhood in New Zealand.
The Applicant told the Tribunal that he came to Australia at the suggestion of his sister, who lives in Townsville, for a better start at life. The Applicant told the Tribunal that it was after he left living with his sister, having been in Australia a year, that he began committing crime.
The evidence before the Tribunal is that the Applicant has previously used cannabis, MDMA and cocaine.
In his oral evidence the Applicant said that he has taken steps to rehabilitate himself but was not optimistic about succeeding before the Tribunal because of the seriousness of the offending for which he has been convicted. The Applicant gave oral testimony about having completed a number of short courses whilst he has been detained. The Tribunal accepts this, and was provided with copies of a number of certificates issued to the Applicant since he was sentenced. The Applicant also expressed a desire to undertake further courses once he is released. The Applicant also has a desire to undertake an electrical apprenticeship.
The Applicant told the Tribunal how in 2015, at the age of 19, he commenced a relationship with ML. The Applicant explained how approximately one month after they commenced their relationship, ML had a stroke and was hospitalised for an extended period. The Applicant gave convincing evidence concerning how he developed a close parental relationship with ML’s daughter, EL, as he took on much greater responsibility for her care whilst ML was recovering.
In cross-examination, the Applicant conceded that he has been involved with drugs since he was at school in New Zealand. He said that he does not react violently “unless I’m provoked”. The Applicant conceded that he was rebellious towards police when he lived in New Zealand. The Applicant sought to explain a violent assault upon police in Australia (referred to further below) by way of being on drugs at the time.
In cross-examination, the Applicant agreed that he trafficked in drugs in order to make money and not simply to support his habit.
It was put to the Applicant in cross-examination that he only stopped drug trafficking because he was caught. The Applicant vehemently rejected this suggestion, saying that he could have continued even though he had come to the attention of the police.
The Applicant also acknowledged in cross-examination that his relationship with ML did not cause him to refrain from abusing drugs and other criminal offending. He conceded that he was not a good influence on EL at times.
Since the Applicant has been sentenced, he has held a number of roles in prison, including as a farm hand and as a tailor. In September 2020 the Applicant was described by prison officials in an email to the Department of Home Affairs as “generally polite to staff and other prisoners. He worked in the kitchen at the TCC Male farm with a good work ethic. He has also worked in the workshop area and officers repot (sic) him as hard working”.
ML – the Applicant’s partner
The Tribunal has read and had regard to a short written statement dated 7 November 2019 provided by ML. In her statement, ML makes reference to the Applicant’s difficult childhood and cannabis dependency.
In her statement, ML confirms the Applicant’s evidence concerning the role he first took on in caring for EL following her stroke. ML describes the steps that she understands the Applicant has taken in an attempt to turn his life around. ML states that the Applicant can “become a productive member of our community”.
In cross-examination, ML agreed that during the course of their relationship, the Applicant has at different times maintained a separate residence from her and EL.
ML also conceded in cross-examination that a decision has been made, following EL’s presence in their home when the Applicant was raided by drug squad police, to limit EL’s further exposure to the criminal justice system. ML said that, for this reason, EL hasn’t seen the Applicant since he was imprisoned in 2018. In addition to telephone contact, ML’s written statement also makes reference to the Applicant and EL exchanging letters. An example of such a letter was included in the materials before the Tribunal.
Mr Robert Heusdens
The Tribunal has read and had regard to a short written statement provided by Mr Heusdens which is undated. In that statement, Mr Heusdens states that he conducts his own business as a removalist and employed the Applicant as an employee removalist. Amongst other things, he describes the Applicant as “totally trustworthy”, having a good work ethic and being very good with children.
Mr Heusdens also gave oral evidence to the Tribunal. Mr Heusdens said that the Applicant first came to work for him, as a casual labourer, six-nine months before he was incarcerated. Mr Heusdens said that the Applicant was well liked by customers and that he would employ the Applicant again when he is released.
In cross-examination, Mr Heusdens acknowledged that he didn’t have a complete understanding of the Applicant’s criminal history.
Ms Bonnie Mitchell
The Tribunal has read and had regard to a short written statement provided by Ms Mitchell which is undated. In the written statement, Ms Mitchell describes knowing the Applicant since 2016, as a “close acquaintance” and refers to his “kindness and generosity within his community”. Ms Mitchell states that she supports the applicant being allowed to remain in Australia.
Ms Sonja Leijen
The Tribunal has read and had regard to a short written statement provided by Ms Leijen which is undated. In the written statement, Ms Leijen describes knowing the Applicant for over six years, having met him through her son, and refers to him being “supportive, respectful, kind and generous”. Ms Leijen states that the Applicant has expressed a “deep and consistent remorse” and that she supports the Applicant being allowed to remain in Australia.
Ms Stephanie Williams
The Tribunal has read and had regard to a short written statement provided by Ms Williams which is undated. In the written statement, Ms Williams describes knowing the Applicant since 2017, as a “close friend” and refers to him as “friendly, respectful and hardworking”. Ms Williams states that the Applicant has a lot of good qualities and that she supports the Applicant being allowed to remain in Australia.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
Background and Offending
The Applicant’s criminal history is best summarised as:
·On 25 July 2014, the Applicant appeared before the Townsville Magistrates Court after he was intercepted by police on 29 June 2014 and charged with driving a motorcycle over the middle alcohol limit.
·On 19 August 2016, the Applicant was sentenced by the Townsville Magistrates Court for the following offences: commit public nuisance; serious assault police officer whilst adversely affected in public place (two counts); assault or obstruct police officer in public place while adversely affected by intoxicating substance (three counts); wilful damage of police property. The offences were committed on 10 January 2016. The Applicant was fined $700 and no conviction was recorded.
·On 16 November 2016, the Applicant was sentenced for: failure to appear in accordance with undertaking. He was fined $200 and no conviction was recorded.
·On 5 July 2017, the Applicant was found guilty of: contravention of domestic violence order. The offending took place on 28 June 2017. He was fined $700 and no conviction was recorded.
·On 16 January 2018 the Applicant was found guilty of: trafficking in dangerous drugs; supplying dangerous drugs; receiving or possessing property obtained from trafficking or supplying; possessing dangerous drugs (two counts); possessing dangerous drugs schedule 1 quantity of or exceeding schedule 3 less than schedule 4 and possessing anything used in the commission of crime define in Part 2. The offending took place between 19 May 2015 and 21 May 2016. The Applicant was convicted and sentenced to a total period of 8 years imprisonment, eligible for parole on 16 September 2020.

In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Application of Factors in Paragraph 13.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)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);
(i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act.
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously.
The Applicant’s offending incudes the violent offence of assaulting police officers and of assaulting his partner in contravention of a domestic violence order. These offences are discussed in further detail below. There is no evidence before the Tribunal of any crimes of a sexual nature.
Be that as it may, I am of the view that the clearly discernible themes of violence redolent in the Applicant’s offending history strongly militates in favour of a finding that his offending has been of a very serious nature.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.
The Applicant’s offending includes a conviction for breaching a domestic violence order. The police statement of facts states that the Applicant asked his partner to cut his hair and became angry and aggressive towards her afterwards. According to the statement of facts, the Applicant yelled at his partner and “grabbed hold of [her] by the wrists and began dragging her back to fix his hair. The applicant’s partner tried to pull away and he squeezed her wrists”.
The nature of the violence perpetrated by the Applicant upon his abovementioned victim is appalling. There can be no other finding than that this sub-paragraph (b) militates very strongly in favour of a conclusion that the Applicant’s offending has been of a very serious nature.
Sub-paragraph (c)of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.”
The Applicant’s offending includes violent offences against police officers. The police statement of facts relating to the conviction on 19 August 2016 states that the Applicant forcefully opened the door of a police vehicle and used offensive language, stating words to the effect “come on you cu---. I am going to fu—you up.” After the Applicant refused to cease this behaviour he was placed under arrest for public nuisance. The Applicant resisted the attempts of police officers to restrain him, flung an officer onto the ground and wrestled with police. According to the statement of facts, the Applicant also jump-kicked another officer in the chest causing him to fall backwards into a police vehicle with enough force to cause damage to the vehicle.
The Applicant cannot cavil with the reality that his offending against police officers did constitute offending against “government officials … in the performance with their duties”. Accordingly, the Applicant can find no solace in this sub-paragraph (c) and it should rightly weigh heavily against him in terms of this Tribunal making a finding that his offending has been of a very serious nature.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
As referred to above, the Applicant was sentenced to a substantial term of eight years imprisonment for drug trafficking and supply offences. According to the sentencing judge, the circumstances of the Applicant’s offending involved possession of $105,750 in cash, cocaine of a pure weight of 9.073 grams, “something close to 100 ecstasy tablets” and cannabis which were used in a trafficking enterprise over a 12-month period. The sentencing judge characterised the Applicant’s offending as “serious” while also noting his early plea, youth and prospects of rehabilitation. The substantial custodial sentence imposed by the court reflects the seriousness of the Applicant’s offending. Moreover, in his revocation request, the Applicant acknowledged that the offending was of a serious nature.
The Applicant’s sentencing history demonstrates repeated attempts by those in judicial authority to deal with the Applicant’s offending by way of the imposition of progressively stringent sentencing regimes. Any reasonable interpretation and analysis of the totality of those sentencing regimes militates in favour of the allocation of a strong level of weight to this sub-paragraph (d) in favour of a finding that the Applicant’s finding has been of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The sentencing of the Applicant since 2014 demonstrates an increasing trend of severity progressing from fines with no conviction recorded through to an eight-year custodial sentence.
The sentencing history is demonstrative of an Applicant who has experienced little or no deterrent effect from the sentences progressively imposed upon him throughout the history of his offending. He has an offending history that runs from August 2016 to January 2018, involving the commission of some 16 offences. Two things are apparent from that history. It is clearly demonstrative of frequent offending. It is also a history demonstrative of a worryingly increasing level of seriousness in the offences committed.
I am of the view that this sub-paragraph (e) has application to this Applicant’s offending such that a strong level of weight should be allocated to a finding that his offending to date has been of a very serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
The Minister submits that the Tribunal should have regard to the cumulative effect of the Applicant’s repeated offending as the applicant has committed multiple offences in the relatively short period of time he has been in this country.
While it is difficult to gauge the cumulative effect of the Applicant’s repeated offending, it is safe to say that the Applicant’s repeated offending has resulted in members of the Australian community being subjected to drugs and violence, with the resulting physical and psychological effects this kind of offending brings. On these bases alone, it is safe to find that the cumulative effect of the Applicant’s repeated offending is both demonstrative of its seriousness, and supportive of the application of a heavy level of weight to this sub-paragraph (f) in favour of its characterisation as “very serious”.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
This factor is not relevant to determination of the instant application.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
This factor is not relevant as there is no evidence that the Applicant was formally warned about the consequences of further offending prior to the mandatory cancellation of his visa.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia.
This factor is not relevant to determination of the instant application.
Having regard to the totality of the evidence to which the abovementioned relevant sub‑paragraphs of paragraph 13.1.1(1) of the Direction are relevant and bearing in mind the respective weights I have allocated to each relevant sub-paragraph, I find that the Applicant’s offending conduct can be readily characterised as very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non‑citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Should the Applicant engage in further assault or drug trafficking and supply offences, it is likely that the nature of the harm to victims would be such as to cause those victims varying degrees of harm, with potential lifelong physical and mental consequences. This this would also be the case were the Applicant engage in further serious driving offences. Drug trafficking is also broadly harmful to the fabric of the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In the Applicant’s written response to the notice of cancellation and the statement of facts, issues and contentions, the Applicant argued that it was not reasonable to infer from the information provided that he would present a risk to the Australian community. The Applicant contended that contributing factors present at the time of his offending were no longer relevant, including:
·the Applicant’s age; he submitted that he was considerably younger and naïve at the time of the offending.
·the Applicant’s employment status; he submitted that there was a prevailing high unemployment rate around the time of the offending with no foreseeable available employment opportunities. The Applicant submitted that he “has evidenced employment upon release”.
·the fact that the Applicant was heavily dependent on illicit substances at the time of the offending which negatively impacted his ability to exercise good judgement about how he would sustain the considerable financial burden then confronting him. The Applicant submitted that he had been abstinent for two years “with achievable plans to remain abstinent, aided by regular attendance at a drug rehabilitation program.”
The Applicant stated that “the support available will be perceived differently, providing an additional level, that will be considerable in the prevention of offending”. The Applicant referred specifically to three other matters raised by the delegate who decided not to revoke the cancellation decision. The Applicant contended that the delegate’s statement about him associating with inmates who have engaged in adverse behaviours and that he has a history of contraband possession and poor behaviour, particularly when placed at a low custody farm, was a “biased and unreasonable opinion”. The Applicant contended that he strongly disagreed with the inference that who he associated with while in criminal custody was definitively indicative of his future behaviours were he to be released back into the community. The Applicant stated that there were limited opportunities for him to associate with people who display exemplary behaviour amongst a pool of convicted inmates compared to rest of the community.
The Applicant sought to respond to the delegate’s reservations about his ability to abstain from illicit drug use in the community and to cease contact with negative influences. The Applicant contended that it was not reasonable to assume that he has the ability to foresee if a person visiting him in custody will scan positive to an illicit substance and that the reason the visitor had scanned positive was due to residual contamination as a result of that visitor having contact with the Applicant’s belongings. On this basis, the Applicant sought to suggest or contend that the delegate’s findings about him returning to negative influences and other causative elements behind his past offending were misplaced. Further, he took issue with the delegate’s findings that these past negative influences would hamper his rehabilitation and contribute to an ongoing risk of reoffending.
The Applicant sought to respond to the delegate’s reservations about (1)his ability to cope with adversity and challenges without turning to illicit substances, and (2) his ability to resist re-engaging in drug trafficking to support himself, particularly if he experiences difficulty in supporting himself through lawful means. The Applicant stated that he had attended drug rehabilitation programs to learn effective ways to navigate and manage the challenges of life without resorting to illicit substances as a means of coping with difficulties in his life. The Applicant stated that he “planned to attend” counselling to acknowledge and understand the effects into how his adverse childhood experiences have impacted on his perspective and life choices as an adult. The Applicant stated that he had secured employment awaiting his release. He also stated that the parole board were able to put in place restrictions deemed necessary to improve the likelihood of his successful rehabilitation and ultimately reduce the risk of reoffending.
In the Applicant’s oral testimony, he told the Tribunal how he has completed various courses in an attempt to try to rehabilitate himself. The Applicant made reference to a low intensity substance intervention program he completed in 2019 and a separate resilience program. The Applicant told the Tribunal how the resilience program has taught him to deal with anger in a more acceptable manner. The Tribunal also notes that the delegate made reference to a ‘positive features’ program. The Applicant also spoke of a willingness to undertake further courses in the future.
In cross-examination, the Applicant conceded that the June 2014 incident on the motorcycle (referred to above), could have resulted in a fatal collision, given that the Applicant was over the alcohol limit and in charge of the motorcycle at the time.
The Tribunal observes that in July 2018 the Applicant regressed from low custody due to an allegation that a visitor, ML, attempted to introduce tobacco into the prison. The Tribunal has read and had regard to ML’s written denial on this.[7]
[7] Exhibit G1, page 154.
The Applicant also conceded in cross-examination that he was involved in an assault of another prisoner on 28 June 2019 but sought to downplay his responsibility in that incident by saying that he experienced a rush of adrenaline and acted only in self-defence.
Further, the Applicant conceded in cross-examination that in 2019 he was found by prison officers to be in possession of a prohibited tattoo gun. He did not dispute that the gun belonged to him.
In the Applicant’s oral testimony, he asked the Tribunal to have regard to the assessment of Queensland Corrective Services concerning his risk of re-offending. In this respect, the Tribunal has read and had regard to a document entitled ‘Notice of Placement Decision’ dated 25 April 2019.[8] In this document, the Applicant is assessed as having a Risk of Reoffending – Prison Version (RoR-PV) score of 5 which indicates that the Applicant “falls into the category of prisoners who pose a low risk of further general offending”. Significantly, the document states however that the RoR-PV score does not “indicate your risk of violent re-offending”.
[8] Exhibit G1, page 78 to 80.

The Respondent’s position is that the Applicant’s claim to be rehabilitated remains untested given that he is not living within the community at large. The Respondent identified that the applicant has at times sought to attribute some of his offending to his long-standing addiction to drugs. The Respondent’s written submission highlights that there is no expert evidence before the Tribunal providing any diagnosis of psychological or other issues predisposing him to abuse drugs. In the same document, the Respondent highlighted that “nor does the applicant appear to have a clear plan in place (in the event that his visa is returned to him) with respect to ongoing therapy, treatment or other management for his drug addiction”.[9]
[9] Exhibit R2, page 11.
Ultimately, the Tribunal considers that the evidence before it that the Applicant is already rehabilitated lacks cogency and is without any discernible or quantifiable clinical basis. Whilst the Applicant may have completed short courses to improve himself, he has a long history of abusing drugs and has even offended in this regard whilst on bail awaiting trial in relation to drug charges. I observe that the sentencing judge in relation to the trafficking matters did not accept that this offending was a consequence of his own drug addiction, but was instead to make money.
Conclusion: Primary Consideration A
Having had regard to all the evidence and the relevant factors specified by the Direction, I am of the view (and I find) that Primary Consideration A weighs strongly in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether cancellation is or is not in the best interests of a child who may be affected by cancellation of the applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to cancel the subject visa is expected to be made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
In this case, the Applicant has no biological children of his own and the only relevant child to this proceeding is ML’s 13-year-old daughter, EL.
Application of Factors in Paragraph 13.2(4) of the Direction
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned minor children. Those factors relevantly comprise for present purposes:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Sub-paragraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child/ren and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the child/ren. The Applicant’s evidence is that he developed a bond with EL beginning in 2015 when ML had a stroke and the applicant took on a much greater caregiving role. The Tribunal accepts this. The evidence is that the Applicant has not seen EL since he was detained in 2018, but that he speaks to her by telephone and they exchange letters. As indicated above, a copy of a child’s drawing, exchanged with the Applicant by post, was provided to the Tribunal. [10]
[10] Exhibit G1, pages 81 to 83.
To the extent of any nature and duration of a relationship between the Applicant and child EL, it can be safely found that a slight measure of weight is attributable to this sub-paragraph (a) in favour of the Applicant’s visa status to remain in Australia being restored to him.
Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision-maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child/ren turn 18. Any application of this sub-paragraph (b) is informed by the extent to which the Applicant has played any such role to date. In this case, the Tribunal accepts that the Applicant has played a noteworthy parental role in relation to EL previously and considers that, if his visa status were to be restored and he was released, he would in all likelihood continue to play a parental role in EL’s life. Accordingly, a slight-moderate level of weight is attributable to this sub-paragraph (b) in favour of the Applicant.
Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on child EL. In this case, there is no evidence that any of the actions of the Applicant has shown any observable detrimental effect on EL’s wellbeing. Notwithstanding this, I consider that the Applicant’s conduct resulting in the police raid of EL’s home must have been upsetting to her. At best, this sub-paragraph (c) is of neutral weight for present purposes.
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of child EL from the Applicant would have on that child, taking into account the Applicant’s ability to maintain contact in other ways. The Tribunal considers that we live in an era of electronic communication and it is almost certain that the Applicant will be able to have at least some degree of regular interaction with EL through ordinary electronic means. Further, real-time visual communications are becoming common place and would also most likely be available to the applicant and EL. At best, only a slight measure of weight in favour of the Applicant is attributable to this sub-paragraph (d).
Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the children. The Tribunal considers that EL’s biological parents ordinarily discharge primary parenting responsibility. The Applicant gave evidence, which I accept, that EL’s biological father has a very active parental role in EL’s life. Indeed, the Applicant described him as a “really good father”.[11] Having regard to the circumstances of this case, this sub-paragraph (e) is of only slight weight in favour of the Applicant in assessing whether restoration of his migration status is in the best interests of EL.
[11] Transcript, page 38, line 25.
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of child L about that child’s separation from the Applicant, having regard to child L’s age and maturity. I am of the view that EL is very much of an age where she could have shared her own views concerning these matters. She has however not done so. As such, it is therefore difficult to assign any weight to this sub-paragraph (f) in the absence of any such known views and where there is no independent evidence to suggest that the Applicant’s absence from her life so far, or in the future, will have a negative impact on her.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the applicant has abused or neglected the child/ren in any way, including physical, sexual, and/or mental abuse or neglect. This factor is not relevant to the circumstances of this case, has no weight and is not relevant to any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child/ren have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. In relation to this, the Tribunal refers to its remarks in relation to sub-paragraph (c) above.
Conclusion: Primary Consideration B
The Tribunal considers that the best interests of EL weigh in favour of revocation of the decision to cancel the subject visa. That said, I am of the view that the weight attributable to this Primary Consideration B is of a slight level and does not, in any way, outweigh the strong weight that I have allocated to Primary Consideration A.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1)[12] of the Direction provides that the Tribunal should consider whether the applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. The Tribunal must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[13] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.
[12] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[13] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
The Evolution of the Australian Community’s “Expectations”
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[14]
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”
[My underlining]
[14] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
This more circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection (“YNQY”):[15]
“In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.”
[My underlining]
[15] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer also thought the last two sentences of paragraph 13.3 of the Direction:
“…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…”
[My underlining]
In Afu v Minister for Home Affairs (“Afu”),[16] Justice Bromwich said:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[My underlining]
[16] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[17] Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[18] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [19]
[My underlining]
[17]     [2019] FCA 500.
[18]     Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[19]     FYBR, paragraph [42] (Perry J).
The single judge decision in FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld the single judge decision in FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian community.[20]
[20] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. Rather, it is an assessment of community values made on behalf of that community.[21]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[22]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks the “expectations of the Australian community” are, and the Tribunal should have due regard of those statements, if made;[23]
(d)in assessing the weight attributable to this Primary Consideration C, decision‑makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker.[24]
[21]     Afu at paragraph [85].
[22]     FYBR at paragraph [42].
[23]     FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[24] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to Primary Consideration C
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law: see sub-paragraph 13.3(1) of the Direction. This expectation was breached when the Applicant engaged in very serious offences involving violence and drug activity.
I have taken into account that Australia may afford a higher level of tolerance to criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age (see subparagraph 6.3(5) of the Direction). In the present case, the Applicant has not lived in Australia for most of his life or from a very young age. In these circumstances, I consider that the Applicant should not be afforded a higher level of tolerance.
At the same time, the evidence before the Tribunal suggests that the Applicant has, at certain times, made a positive contribution to the community during his time in Australia (see sub-paragraph 6.3(7) of the Direction). This is because, despite experiencing the challenges of unemployment at times, he has worked for a number of employers in Australia. Indeed, in this respect, his previous employer gave convincing oral evidence that the Applicant was well regarded by his Australian colleagues and customers.
Conclusion: Primary Consideration C
The Tribunal finds that the Applicant has breached the expectations of the Australian community outlined in the Direction in relation to committing serious criminal offences which a court has found warranted a significant custodial sentence.
The Tribunal places moderate weight on this consideration in favour of non-revocation of cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not made any claim to the effect that the non‑revocation of cancellation of his visa may result in the breach of Australia’s non‑refoulement obligations. If the mandatory cancellation of his visa is not revoked, the Applicant would be repatriated to New Zealand.
(b) Strength, nature and duration of ties
As referred to above, the Applicant first arrived in Australia on 6 September 2012, shortly before his 17th birthday. Other than for a fortnight in 2013, he has remained in Australia.
The Applicant’s evidence is that he also has a relationship with a sister who lives in Townsville. That sister did not provide evidence for the instant hearing.
The Applicant commenced a relationship with ML shortly after meeting her in mid-2015. Their relationship ended soon after their residence was raided by police in relation to the Applicant’s drug trafficking activity in May 2016. They resumed their relationship in early 2017. In March 2017, following a dispute about whether the relationship was monogamous, ML described the relationship to police as ‘on again off again’[25]. Nevertheless, the relationship continues.
[25] Exhibit R1, page 168.

Overall, the Tribunal finds that the Applicant has lived in Australia for a reasonable period, has maintained a de-facto relationship and has played a parental role in EL’s life here. The Tribunal accepts that ML and EL will be distressed if the Applicant was removed from Australia.
The Tribunal accepts that the Applicant has established ties with his family members in Australia. The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel the Applicant’s visa. The Tribunal places moderate weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
This consideration is not relevant in this matter and the Tribunal places no weight on this consideration.
(d) Impact on victims
It is likely that this consideration was envisaged to take into account any expressed views of members of the Australian community, in particular victims or members of their families, on the positive impact on them of a decision not to revoke the cancellation of an applicant’s visa.
The only direct evidence from a victim which the Tribunal has before it is the evidence of ML whom the applicant has committed family violence against. Her evidence is that she believes that the Applicant will positively contribute to the lives of her and EL into the future.
At first glance, such evidence, when accepted, would ordinarily weigh in the Applicant’s favour. As Senior Member Morris said in RDVN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA (21 December 2020) at paragraph 127:
… it would be inimical to other parts of the Direction to determine that this consideration could weigh in favour of an Applicant who has been convicted of domestic violence offences, even where the domestic violence victim might have expressed views of forgiveness or support for a person to be granted a visa. This is because when Direction No. 79 was made by the Minister, it specifically emphasised, amending the Direction it replaced, that crimes against women and children are to be regarded seriously, regardless of the sentence imposed.
It follows that the Tribunal does not weigh this matter in the Applicant’s favour and considers it to be of neutral weight.
(e) Extent of impediments if removed
The Applicant is now 24 years of age. He was born in New Zealand and lived there for some 16 years before coming to Australia. The Applicant’s parents and nine siblings continue to live in New Zealand. There are no language or cultural barriers which would act as impediments to his continued residence in New Zealand. Of particular significance is the fact that the majority of his family continue to live in New Zealand.
I accept that his removal from Australia would have a negative impact on the emotional state of the Applicant. While there may be some impediments to the Applicant re-establishing himself in New Zealand, there is no evidence that he would not be entitled to all the ordinary support services available to other citizens of that country.
This consideration is of neutral weight.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs moderately in the applicant’s favour;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: neutral.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal finds as follows:
·Primary Consideration A weighs strongly in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation;
·Primary Consideration C weighs moderately in favour of non-revocation; and
·To the extent that Primary Consideration B and Other Consideration (b) weigh in favour of revoking the mandatory visa cancellation decision, they do not, even when combined, outweigh the combined weight I have allocated to Primary Considerations A and C.
A holistic application of the Direction therefore favours non-revocation of the cancellation of the Applicant’s visa.
Balancing all the factors and evidence before me, I do not exercise the discretion to revoke the cancellation of the Applicant’s visa. I therefore find that the decision under review must be affirmed.
DECISION
The decision under review is affirmed.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member P. Q. Wood

.............................[sgd]...........................................
Associate
Dated: 24 December 2020

Date of hearing: 10 December 2020

Representative for the Applicant:
Ms ML

Solicitor for the Respondent
Mr Matthew Hawker

Sparke Helmore Lawyers

ANNEXURE A – EXHBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (pages 1 to 190)

-

14 October 2020

R1

Respondent’s Tender Bundle (pages 1 to 175)

-

9 November 2020

R2

Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 20)

25 November 2020

25 November 2020

A1

Applicant’s Statement of Facts, Issues and Contentions (pages 1 to 7)

5 November 2020

5 November 2020

[2020] AATA 5211

24 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (pages 1 to 190)	-	14 October 2020
R1	Respondent’s Tender Bundle (pages 1 to 175)	-	9 November 2020
R2	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 20)	25 November 2020	25 November 2020
A1	Applicant’s Statement of Facts, Issues and Contentions (pages 1 to 7)	5 November 2020	5 November 2020