HSRN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3675

HSRN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3675 (13 November 2023)
Division:                  GENERAL DIVISION
File Number(s):2022/6879
Re:HSRN
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Antoinette Younes

Date: 13 November 2023
Place:Sydney

The decision under review is set aside, and in substitution, the mandatory cancellation of the Applicant’s visa is revoked.
...................................[SGD].....................................
Deputy President Antoinette Younes
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 99 – nature and seriousness of offending conduct – protection of the Australian community – strength nature and duration of ties to Australia – best interest of minor children in Australia – expectations of the Australian community – legal consequences of the decision – impediments to removal – decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Migration Act 1958 (Cth) ss 36, 189, 197C, 198, 499, 501, 501CA
CASES
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2020] HCATrans 056
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration, Citizenship and Multicultural Affairsv HSRN [2023] FCAFC 68
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Nepata v Minister for Home Affairs [2019] FCA 1197
Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Antoinette Younes
13 November 2023
BACKGROUND

In May 1965, the Applicant was born in Santa Cruz, in what was the Portuguese colony of Madeira. He came to Australia with his family in 1975, and has never left. He is a citizen of Portugal and a non-citizen of Australia.
On 15 August 2018, the Class BF Transitional (Permanent) visa (the Applicant’s visa) was automatically cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act), as a result of a conviction for cause or set fire to the property of another, or Crown-T2, for which the Applicant was sentenced to a 12-month term of imprisonment.[1] The Applicant’s visa was cancelled on the basis that he had a ‘substantial criminal record’. On 15 August 2022, a delegate of the Minister refused to revoke that decision.
[1] Ex 1.
The Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision, and on 8 November 2022, the Tribunal (differently constituted) set aside the delegate’s decision and substituted it with a decision to revoke the mandatory cancellation of the Applicant’s visa. On appeal by the Respondent, and on 11 May 2023, the Full Court of the Federal Court of Australia set aside the Tribunal’s decision and remitted the matter to the Tribunal for reconsideration to be determined according to law.[2]
[2] Minister for Immigration, Citizenship and Multicultural Affairsv HSRN [2023] FCAFC 68.
LEGISLATION
Section 501(3A) of the Act compels the Respondent to cancel a visa in certain circumstances:
(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)…; 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 Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record.’
Section 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Respondent makes a decision under subsection 501(3A) of the Act to cancel a visa that has been granted to a person.
Section 501CA(4) of the Act provides:
(4) TheMinister 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.
MINISTERIAL DIRECTION NO. 99
The Respondent is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Respondent acting personally, the Direction must be applied by all decision-makers, such as the Respondent’s delegates and the Tribunal.[3]
[3] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].
On 23 January 2023, the Respondent signed Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99). The Direction commenced on 3 March 2023 and revoked the previous Direction 90.
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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 measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)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 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as 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 strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
Paragraph 9 of the Direction identifies the non-exhaustive list of Other considerations:
a)Legal consequences of the decision;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, “information and evidence from independent and authoritative sources should be given appropriate weight.” Paragraph 7(2) provides that primary considerations “should generally be given greater weight than the other considerations.”
Relevant to this matter, is the difference between Direction 90 and Direction 99 in their approach to persons like the Applicant, who have lived in Australia most of their lives or from a very young age. The preamble in Direction 99 sets out the objectives[4] and the overarching principles[5] that provide the framework within which decision-makers should approach their task under ss 501 and 501CA. Whereas Direction No 90 contained five principles in the Preamble, Direction 99 has increased to six principles having split the previous principle found at 5.2(4) of Direction No 90. Paragraph 5.2(4) of Direction 99 retains the first part of the principle from Direction No 90, namely Australia’s low tolerance of any criminal or serious conduct by visa applicants or those holding a limited stay visa or other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, the principle at the new paragraph 5.2(5) of Direction 99 now indicates that Australia ‘will generally’ (having amended from ‘may’) afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.[6] Direction 99 introduces to this principle that the level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years. The consideration of ‘strength, nature and duration of ties to Australia’ has been moved from an ‘other consideration’[7] to a ‘primary consideration’,[8] and, as such, "should [now] generally be given greater weight than the other considerations".
[4] Direction 99 [5.1].
[5] Direction 99 [5.2].
[6] In Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802, the Court rejected the applicant’s submission that ‘most of their life’ in cl 6.3(5) of Direction No 79 (as per para 5.2(5) of Direction No 99) meant ‘most of their adult life’: at [32]. That is, it found that the meaning is plain and that a higher level of tolerance may be afforded to non-citizens who have spent most of their life in Australia, not ‘most of their adult life’.
[7] Direction 99 [9.4.1].
[8] Direction 99 [8.3].
MATERIAL BEFORE THE TRIBUNAL
The Tribunal has the following material before it:
·The Applicant’s Submissions on Remittal dated 31 August 2023 (Exhibit 1);
·The Respondent’s Statement of Facts, Issues and Contentions (SOFIC) dated 10 October 2023 (Exhibit 2);
·Applicant’s Witness Statement dated 5 October 2023 (Exhibit 3);
·Respondent’s Tender Bundle filed on 10 October 2023 (Exhibit 4);
·Letter from Dr Leonardo Capizzi (General Practitioner) dated 7 March 2023 (Exhibit 5);
·Progress Report by Ms Betty Jordan (Clinical Psychologist) dated 10 March 2023 (Exhibit 6);
·Progress Report by Ms Betty Jordan dated 8 May 2023 (Exhibit 7);
·Medical Certificate from Dr Leonardo Capizzi dated 3 August 2023 (Exhibit 8);
·Email from the Applicant’s niece dated 12 October 2023 (Exhibit 9); and
·Remittal Bundle filed on 15 August 2023 (Exhibit 10).
FINDINGS AND REASONS
The character test is defined in s 501(6) of the Act. It is fair to say that the character test is generally concerned with the protection of the Australian community from the risk of harm. The character test deems persons to be of bad character if they fit any of the criteria listed.
A person does not pass the character test only if one of the subsections in s 501(6) applies to that person. In this case, the delegate determined that the Applicant did not meet the character test under s 501(6)(a) because he has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more and was 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.
It is not in dispute that the Applicant does not meet the character test; on 25 June 2018, the Applicant was sentenced to a 12-month term of imprisonment for the offence of cause or set fire to the property of another, or Crown. As a sentence of 12 months or more is ‘a term of imprisonment for 12 months or more’ within the meaning of s 501(7)(c) of the Act, the Applicant has a ‘substantial criminal record’ and he does not pass the character test.
The issue before the Tribunal is whether there is another reason for the cancellation of the Applicant’s visa to be revoked.
The purpose of the Direction is to guide decision-makers exercising powers under the Act. Delegates and the Tribunal must generally follow the Minister’s Direction. The Direction identifies certain principles which provide a framework within which decision-makers should approach their task.[9] It prescribes relevant considerations which must be taken into account. It provides guidance only as to the manner in which they are to be balanced.
[9] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [80]–[81]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction No 99.
The Direction does not determine rules of general application, but gives directions to the decision-maker, including the Tribunal, as to the policy to be applied in exercising the power conferred by ss 501 and 501CA of the Act. The Direction does not derogate from the Tribunal’s duty to reach the correct or preferable decision in the particular case before it; the Direction has that end as its purpose.[10]
[10] Uelese v Minister for Immigration and Border Protection [2016] FCA 348 [50].
While decision-makers are bound to take into account certain considerations, they are not limited to those set out in the Direction.[11] The Direction specifies the relative, but not the actual, weight to be given to those considerations. The Tribunal is obliged to examine the merits of the case and decide for itself.[12] The weight to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some formulaic approach.[13] Phrases such as ‘should generally be given greater weight than the other considerations’ and ‘one or more primary considerations may outweigh other primary considerations’ have been interpreted as provisions that are intended to provide guidance to the decision-maker as to how the balancing exercise required by the Direction should be approached. These phrases leave it open to the decision-maker to adopt a different approach in the individual case.[14] It is not the content of the Direction which determines the outcome of the decision, but rather it is the application by a decision-maker to the evidence and material in an individual case.[15]
THE PRIMARY CONSIDERATIONS
[11] GBV18 v Minister for Home Affairs [2020] FCAFC 17.
[12] See Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [21].
[13] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].
[14] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
[15] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 [78].
Protection of the Australian community from criminal or other serious conduct
The Direction contemplates that 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 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.’[16] It indicates that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[17]
[16] Direction 99 [8.1(1)].
[17] Direction 99 [8.1(2)].
Whether there is a risk that a person would engage in specified conduct requires an evaluative judgement by the decision-maker.[18]
[18] See Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 [2]. The Court considered s 501(1), but the reasoning also applies to ss 501(2) and 501(3A).
The seriousness of the Applicant’s conduct
The Applicant’s criminal history:
The Applicant’s criminal history is as follows:[19]
·On 15 May 1990, at the Wollongong Local Court, the Applicant was convicted of being an unlicenced driver and of supplying false information, for which he was fined.
·On 26 April 2007, at the Wollongong Local Court, the Applicant was convicted of stalk/intimidate w/i to cause fear physical/mental harm-T2, for which he received a fine.
·On 3 May 2007, at the Wollongong Local Court, the Applicant was convicted of sexual intercourse without consent-SI. He received a term of imprisonment of six years, with a non-parole period of three years.
·On 20 April 2018, at the Wollongong Local Court, the Applicant was convicted of remain in building/land w/i commit indictable offence-T1, and common assault-T2. He received a term of imprisonment of six months.
·On 25 June 2018, at the Wollongong Local Court, the Applicant was convicted of cause or set fire to the property of another, or Crown-T2, and received a term of imprisonment of 12 months, with a non-parole period of nine months.
·On 2 July 2018, at the Wollongong Local Court, the Applicant was convicted of the offence of possess prohibited drug, goods in personal custody suspected being stolen (not m/v), and larceny – T2. He received a two-year section 9 bond.
[19] RB1, 38-40, Ex 10.

The evidence before the Tribunal indicates that the Applicant has had a long criminal history, with serious offending commencing in 2007 that led to the conviction of sexual intercourse without consent-SI.
In the relation to the nature and seriousness of conduct, Direction 99 sets out the types of conduct that may be considered very serious, including violent and sexual crimes, crimes against women and children and acts of family violence.[20] The Applicant accepted that his 2007 conviction would be considered a sexual crime and therefore falls within the category of conduct stipulated by the Direction to be very serious.[21] However the Applicant contended that that his past conduct has not been so serious and is sufficient to justify the non-revocation of the mandatory cancellation of his visa. The Applicant relied on remarks made by the previous Tribunal that whilst any sexual crime must be considered to be very serious, the previous Tribunal was correct to conclude that, in determining what weight was to be given to the 2007 Conviction, the Applicant submitted that “no legally reasonable conclusion concerning the seriousness of an offence can be determined without informative details of the actual circumstances involved”. Although the Tribunal is not bound by the findings or reasoning of the previous Tribunal, the Tribunal finds those submissions persuasive.
[20] Direction 99 [8.1.1(1)].
[21] Ex 1 [35].
In relation to the offence of sexual intercourse without consent-SI, the Applicant and the victim had been out at various venues in Port Kembla over New Years Eve, and had consumed alcohol, ice and cannabis. They went to the Applicant’s house. The victim then went to the toilet in the main part of the house, and on his return, the Applicant was sitting on his bed watching “heterosexual porn” on the television. The victim laid down and fell asleep. He had all of his clothes on at that the time. He was then woken up to find the Applicant squatting over him at the hip area with one hand behind his back and the other one touching the victim’s genitals. The Applicant was engaging in intimate sexual conduct.[22] The sentencing Court on 3 May 2007 observed:
The accused did not give evidence in the trial. Upon these facts I am satisfied beyond reasonable doubt that the offender knew the complainant was not consenting …
However, on the question of the objective seriousness of the offence I take into account that it occurred in the early hours of the morning after the offender and the complainant had earlier partaken of drugs and had been out drinking alcohol. Both the complainant and the offender had several cones before the complainant dozed off, that is, in the offender's flat. The act was an opportunistic one, it could not be said that any planning was involved. There was no use of force to overcome the will of the complainant and the offence did not involve placing the complainant in fear in order to effect the sexual assault. I accept that when the complainant realised what was happening and asked the offender, "What the [f…k] are you -doing?", the offender replied, "I just couldn't help myself". That statement seems to explain my description of this act as, "An opportunistic one". Accordingly I regard this conduct as falling below the middle of the range of objective seriousness for such an offence.[23]
[22] RB1, 37-57, Ex 10.
[23] RB1, 37-57, 51, Ex 10.
According to the sentencing remarks, the Applicant’s conduct had a profound effect on the victim. The Court remarked that the victim described his emotional state at the time as being "really shooken up … crying … upset, felt sick and dirty, [he] couldn't believe [his] eyes at what had just happened”. He went home had a shower, cried and scrubbed himself 50 times. He then sat outside and cried for 3 to 4 hours.[24]
[24] RB1, 48, Ex 10.
In relation to the 2018 offence of cause or set fire to the property of another or Crown, the Court stated to the Applicant the following:[25]
It is a very serious offence, thankfully not the type of matter that comes before the Court all that often, but as was indicated, and I have had a look at some statistics from the Judicial Commission, this is an offence that if it had gone up to the next level into the District Court, the maximum penalty is five years gaol. Five years gaol, so you go into this area and it is near the Warrawong shops and you set all these fires. As we have heard it was necessary for four fire trucks to turn up. Thankfully, some members of the public observed what you were doing and you went from there over to near Bunnings and then what the facts state that the emergency services had received numerous calls at the time, not only from these people but from other witnesses to the accused actions, concerned members of the public.
The fires were lit, had continued to grow in intensity. The Warrawong area had recently gone through a prolonged period without rain and there was a slight breeze. Four New South Wales Fire Brigade trucks were dispatched to put out the various fires. A coordinated response was conducted by the attending vehicles and the fires were extinguished without incident. No persons were injured or structures or vehicles damaged. Yes, it was not a parkland, but where it has been indicated, not all that far from the shops there at Warrawong and if there had been some embers in the breeze it could 5 have landed on those shops, could have set the whole place alight. There are all sorts of possibilities. Thankfully, nobody was hurt. That is the main thing and as the prosecutor said, people deliberately lighting fires seems to be increasing. I do not know why people would do that.
You have told your solicitor you do not remember anything about it because you were on ice, yet you had all these folded up napkins, you had boxes of matches and you still had some of the stuff when you were caught by police. Yes, you have not got a lengthy record, but then the Court has got to take into account that you received a six year sentence back in 2007 for rape and you spent a minimum three years in custody then. There are some other matters pending, serious matters. Given the overall objective seriousness of this matter it is my view that nothing other than a custodial sentence is warranted. There had to be a general deterrence for people doing these sorts of things, deliberately lighting fires.
Whether you remember it or not, you are deliberately lighting fires. People were concerned, the fire brigade were getting all these calls from people. It was a windy day and there hadn't been any rain for a while. In these sorts of matters you have to look at what the maximum penalty is, as I said, five years. The Local Court can only impose a period of two years for one offence, but that doesn't have to be the most serious type of offence. This in my view would be close to the midrange of seriousness given the proximity to shops. As I said, thankfully no-one was hurt and no damage to property other than maybe some trees, but the potential for danger is frightening.
There must be a gaol sentence. In my view, to deal with it by way of a suspended sentence or an Intensive Corrections Order would be inappropriate. I take into account your plea of guilty in reducing the sentence that I would otherwise impose…
[25] RB1, 58-61, 60, Ex 10.
In relation to the stalking offence for which the Applicant was convicted on 26 April 2007, the incident occurred on 4 August 2006.[26] The Applicant saw the victim of his sexual assault offence after the trial and pointed at the victim and moved his finger across his throat in a threatening manner.
[26] RB4, 1724, Ex 10.
In April 2018, the Applicant was convicted of common assault and remaining in building/land with intention to commit an indictable offence, for which he received a sentence of imprisonment for 6 months. Those offences occurred on 20 October 2017.[27] The police record refers to the Applicant having entered a property and removing a padlock from a shed. He was taking fishing rods from that shed and when he was confronted, the Applicant removed a stainless steel washing machine lid and swung it towards the victim.[28]
[27] RB4, 1726, Ex 10.
[28] RB4, 1732, Ex 10.
In July 2018, the Applicant was convicted of possessing prohibited drug, goods in personal custody suspected of being stolen, and larceny. The drug possession conviction relates to an event on 25 September 2017.[29] The police report notes that the Applicant entered someone’s property, and when the police were called he was found with a white crystal substance in his pocket which he claimed at the time was salt.[30]
[29] RB4, 1724, Ex 10.
[30] RB4, 1736, Ex 10.
In relation to the stealing offences that occurred on 16 October 2017,[31] a police report of records the Applicant stealing items including jewellery.[32]
[31] RB4, 1726, Ex 10.
[32] RB4, 1733, Ex 10.
In the Respondent’s SOFIC, other matters of concern were raised.[33] However, those were withdrawn in the course of the hearing, and the Tribunal has not used those matters in any adverse manner to the Applicant.
[33] Ex 2, [16], [38.2.3].
The conviction of sexual intercourse without consent-SI is deemed to be very serious by paragraph 8.1.1(1)(a) of Direction 99. It is also objectively a serious offence, which is reflected in the six-year term of imprisonment imposed. The Tribunal is also of the view that the conviction for setting fire to property is serious, due to the potential for property damage and loss of life. As mentioned earlier, the sentencing Court, viewed it as being a very serious offence and also resulted in a custodial sentence.[34] The Applicant has also been in threatening violent conduct, including a common assault, for which he received a sentence of imprisonment.
[34] RB1, 60, Ex 10.
Although there were periods of non-offending conduct, the Tribunal is of the view that the cumulative and repeated nature of the Applicant’s offending conveys a degree of seriousness. Moreover, despite being formally warned by the Department on 29 January 2010,[35] after a different mandatory cancellation decision, the Applicant continued to reoffend. In the letter by the Department, the Applicant was advised “that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”[36] The Tribunal is persuaded by the Respondent’s submissions that the Applicant’s conduct is “indicative of a serious and repeated disregard for the law and the seriousness of the consequences of the applicant's actions”.[37]
[35] RB1, 1596-1597, Ex 10.
[36] RB1, 1596, Ex 10.
[37] Ex 2 [35].
The Applicant contended that paragraph 8.1.1(1)(b) of the Direction sets out the types of conduct that may be considered "serious", which include causing a person to enter into or being party to a forced marriage, crimes committed against vulnerable members of the community, 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, and crimes committed while the non-citizen was in immigration detention. The Applicant does not have any criminal convictions that fall within these categories. The Tribunal observes that the Direction does not limit the range of conduct that may be considered to be very serious or serious; the Direction at paragraphs 8.1.1(1)(a) and (b) clearly states “without limiting the range of conduct that may be considered very serious” or “serious”, indicating that the list of offences is not an exhaustive list.
For those reasons and on balance, the Tribunal is satisfied that the nature and seriousness of the Applicant’s criminal offending weigh heavily against revocation.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that decision-makers must have regard to the following considerations 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).
c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Direction contemplates that 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.[38] In some circumstances, it may be permissible to conclude that any type of continued offending increases the risk of further violent offending.[39] The Tribunal needs to consider the likelihood and consequences of further offending.[40]
[38] Direction 99 [8.1.2(1)].
[39] Nepata v Minister for Home Affairs [2019] FCA 1197 [30].
[40] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95].
In the Applicant's submissions on remittal, it was contended that the Applicant does not pose a risk to the Australian community.[41] It was argued that the Applicant has a single conviction for an unpremeditated sexual crime committed 20 years ago, and although there are professional reports regarding the Applicant’s risk of recidivism, “time has proven there was and remains no risk of reoffending”,[42] and that the balance of the Applicant’s convictions were clearly driven by his past addiction to ice.
[41] Ex 1.
[42] Ex 1, [45].
The Respondent contended that the Applicant should be found to pose a moderate risk of reoffending.[43] The Respondent contended that although the Applicant has attended courses for drug use in 2009 and 2010, they appear to have had no long term impact. As to his claim of being rehabilitated from drugs in 2018, the Applicant was still described as being susceptible to relapse.[44] The Applicant has admitted to subsequent drug use, including intermittent substance use in immigration detention up to at least April 2020.[45]
[43] Respondent’s SOFIC, Ex 2.
[44] RB1, 59, Ex 10.
[45] RB1, 383, Ex 10.
The Respondent raised the following matters:
·A Specialist Psychologist, Ms M Cruickshank, assessed he Applicant at the conclusion of the Sex Offenders Program in which the Applicant participated from 13 October 2009 until 26 May 2010.[46] Ms Cruickshank noted that the recidivism rates of sexual recidivism for sexual offenders within the normative samples who had the same total score as the Applicant was between 3.2% and 10.3% over five years and between 2.6% and 15.8% over ten years. She concluded that the Applicant’s score on the STATIC-99R was 1, which placed him in the “low risk category relative to other male sexual offenders”.[47] The report referred to risk factors identified by the Applicant including substance misuse, unemployment, feeling sad/lonely, clubbing, watching pornography and engaging in casual sexual behaviour with friends.[48]
·Probation and Parole Service prepared a pre-release report on 8 July 2010 which assessed the Applicant to be at a low-medium risk of reoffending.[49] However, a more recent pre-sentence report dated 12 April 2018 assessed the Applicant as being at a medium risk of reoffending.[50] Given its relative recency, the Tribunal gives more weight to the 2018 report.
·The Applicant has had a long-term issue with illicit drug use that commenced in 1997.[51] The Applicant has used cannabis, amphetamine, and crystal methamphetamine. He attended courses for his drug use in 2009 and 2010 which appear to have had no long term impact of his habit. He has again claimed to have successfully rehabilitated from drugs in 2018, although even then he was described as being “susceptible to relapse”.[52]
·In closing submissions, the Respondent noted that the most recent evidence of the Applicant’s using drugs, was six years ago, and that there was no other records that are before the Tribunal for which the Applicant accepts that he was using illicit drugs.[53] The Tribunal observes that the Applicant has however admitted to subsequent drug use, including intermittent substance use in immigration detention up to at least April 2020. In an International Health and Medical Services (IHMS) report dated 11 August 2020, it was noted that at “his Health Induction Assessment in March 2019, [the Applicant] disclosed a history of substance use and has been reported to have intermittent, mild substance use while in immigration detention”. On 28 May 2020, the Applicant “advised an IHMS psychiatrist that he had been abstinent from substance use for one month.”[54]
·The Applicant was warned by the Department in 2010 that visa cancellation could be reconsidered in case of further offending, but the Applicant committed six subsequent offences for which he was convicted in 2018. The Tribunal accepts the Respondent’s submissions that the warning does not appear to have had any long-lasting deterrent effect, which means that the Tribunal should not lightly accept any claim made by the Applicant that he would not reoffend.
·The Applicant had a three-year gap of unemployment prior to his offending in 2007. The Applicant’s offending in 2018 occurred after his loss of employment in the construction industry.[55] The Applicant gave evidence that he is not currently working but intends to work. He explained that he receives unemployment benefits from Centrelink but is unable to work due to being “too stressed”.[56] The Applicant stated that he intends to find work in the construction industry when the visa cancellation proceedings are over.[57] The evidence is that the Applicant is not currently working and whether he will work is dependent on multiple factors, and as such the Tribunal would be speculating. The Tribunal is of the view, and as pointed out previously, unemployment is a risk factor in the Applicant committing further offences.
·The Applicant has limited insight into his offending. Following the sex offender’s program, the Specialist Psychologist found that although the Applicant took some responsibility for his offending during treatment, he then reverted to a high level of denial, and he did not appear to have any empathy for the victim.[58] The Tribunal observes that Ms Cruickshank noted that the Applicant “perceived that his victim was manipulative and “set him up””. Ms Cruickshank noted that the Applicant “believed that his only wrongdoing was engaging in sexual contact with a male who did not identify as homosexual. However, he did recognise that his sexual behaviour had been risky.”[59] The 2018 Pre-Sentence Report into the Applicant’s common assault offences also refers to the Applicant’s “limited insight into his offending blaming alcohol for his actions”, although the report mentions that the Applicant “expressed some regret for the offence and an element of victim empathy”.[60] The Tribunal considers it serious that despite the conviction, and many years later, the Applicant still demonstrates a lack of acceptance, high level of denial, and limited empathy for the victim.
[46] RTB7, 1862-1871, Ex 10.
[47] RTB7, 1866, Ex 10.
[48] RTB7, 1868, Ex 10.
[49] RTB9, 1877-1881, Ex 10.
[50] RTB13, 1893-1895, Ex 10.
[51] RB1, 54, Ex 10.
[52] RB1, 59, Ex 10.
[53] Transcript, 36, [40].
[54] RB1, 383, Ex 10.
[55] RB1, 59, Ex 10.
[56] Transcript, 15, [25].
[57] Transcript, 15, [15]-[35].
[58] RTB7, 1869, Ex 10.
[59] RTB7, 1864, Ex 10.
[60] RTB13, 1894, Ex 10.

The Tribunal is satisfied that the cumulative evidence indicates that the Applicant has a lengthy criminal history involving sexual offending, violence and risky behaviour, and that he has limited insight and empathy. The Tribunal acknowledges the Applicant’s efforts to rehabilitate, including his recent attendance at the Illawarra Sexual Health Service, seeing a psychologist since early 2023, seeing his general practitioner since November 2022, and seeing a psychiatrist.[61] However, the Tribunal is guarded regarding the long-term efforts of the Applicant’s rehabilitative efforts.
[61] Ex 3.
On the cumulative evidence, the Tribunal is not satisfied that “time has proven there was and remains no risk of reoffending”. On the contrary, time has proven that the Applicant has been involved with the criminal justice system for a substantial period of time and that the periods of non-offending do not necessarily mean a no risk of reoffending. The fact that he was warned by the Department about further offending, but reoffended, suggests many things, including a low to moderate risk of reoffending. In any event, the Tribunal is satisfied that the risk is unacceptable given the serious nature of the Applicant's offending.
For those reasons, the protection of the Australian community consideration weighs heavily against revocation of the cancellation decision.
Whether the conduct engaged in constituted family violence
The Direction refers to the Australian Government having “serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.”[62]
[62] Direction 99 [8.2(1)].
The Direction contemplates that in considering the seriousness of the family violence engaged in by the non-citizen, the factors that must be considered are:
·the frequency of the offending conduct;
·any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence;
·rehabilitation achieved at time of the decision since the person’s last known act of family violence (including the acceptance of responsibility, understanding of the impact of the behaviour on the victim/witness of that abuse (particularly children) and the efforts to address factors which contributed to the conduct); and
·whether the person has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement, or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.[63]
[63] Direction 99 [8.2(3)].
There is no evidence in this case that the Applicant’s conduct relates to the family violence.
The Tribunal gives this consideration neutral weight.
The strength, nature and duration of ties to Australia
The Direction at paragraph 8.3(1) contemplates that 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. In considering a non-citizen’s ties to Australia, the Direction provides, among other things, that decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.[64]
[64] Direction 99 [8.3(2)].
Paragraph 8.3(4) of the Direction requires the Tribunal to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community and in doing so have regard to:
(a) the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending;
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant is now 58 years old, having arrived in Australia with his family when he was 9 years old. His father had arrived in Australia alone some 14 months earlier. The Applicant has never left Australia. He has remained a citizen of Portugal. He left school at the age of 16 years to enter the workforce.[65] He has mostly worked in the construction industry. He has also had periods of unemployment. Currently, he is not employed. There is evidence that the Applicant would face challenges in finding work due to his health issues, although it is contended that he has a job to return to on release.[66]
[65] RB1, 108, Ex 10.
[66] RB1, 108, Ex 10.
He lived with his parents up to the age of 20 years.[67] He has 4 sisters and a brother. He has 8 nieces and nephews, and 9 grandnieces and nephews. His mother and all of his siblings are in Australia. He has cousins and aunties remaining in Portugal. He speaks limited Portuguese.
[67] RB7, 1971-1973, Ex 10.
The Applicant has other community ties and he provided letters of support from the President of the South Coast Portuguese Association and other friends who attest to his character.
The Applicant has significant mental and physical health challenges, including being HIV positive since he was diagnosed at the age of 30 years,[68] and major depression for which he had received electroshock therapy. He requires ongoing and long-term treatment for his HIV.[69]
[68] RB1, 188, Ex 10.
[69] RB1, 184-1582, Ex 10.
Dr Stephen Allnutt, Forensic Psychiatrist, provided a report dated 1 June 2022[70] in which he diagnosed the Applicant as having a “mood disorder – a chronic major depressive disorder or a persistent depressive disorder”.[71] He requires treatment and monitoring.
[70] RB1, 178-189, Ex 10.
[71] RB1, 181, Ex 10.
The Tribunal is satisfied that the Applicant has significant ties to Australia.
This consideration weighs heavily in favour of revocation.
The best interests of minor children in Australia
The Direction requires decision-makers to 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.[72]
[72] Direction 99 [8.4(1)].
In considering the best interests of the child, the Direction states at paragraph 8.4(4) that 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 Applicant does not have children of his own. He contended that his relationship with his nieces, nephews, his grandnieces and nephews, should be given weight. There are letters of support from two of his nieces.[73] He provided multiple photographs of himself with the children and other member of the family.[74]
[73] RTB1, 130-131, Ex 10.
[74] Ex 3.
During the hearing, the Applicant gave evidence that he sees the children on special occasions such as birthdays, as well as at least twice a week when they come round and when he visits the families. He stated that he takes them around to the garden, the chickens, to the dog, and the birds. He stated that on their birthdays he makes a contribution by giving them gifts. He expressed the view that they would be impacted in case of his removal because he is the best uncle and that “they’ll be sad for a while and disappointed”.[75]
[75] Transcript, 25, [5]-[35].
Although the Applicant does not play a parental role, the Tribunal is satisfied that non-revocation is not in the best interest of the minor children.
The Tribunal gives this consideration some weight in favour of revocation.
Expectations of the Australian community
The Direction at 8.5(1) indicates that the Australian community expects non-citizens to obey Australian laws. It states that 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.
The Direction refers to non-revocation of the mandatory cancellation of a visa, being potentially 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.[76] 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 a kind that includes acts of family violence.[77]
[76] Direction 99 [8.5(2)].
[77] Direction 99 [8.5(2)(a)].
The Tribunal observes that the Direction contemplates that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[78]
[78] Direction 99 [8.5(3)].
The Federal Court of Australia decision in FYBR v Minister for Home Affairs[79] (FYBR) is significant. In FYBR, the applicant argued that the Tribunal had erred in its approach that paragraph 11.3 of the then of Direction 65 as being deeming of what community expectations are, irrespective of the individual’s personal circumstances. The applicant argued that the Tribunal did not appreciate that it was permissible for it to assess whether community expectations would have been the same in relation to the applicant, given that he had already spent so much time in immigration detention.[80] In rejecting the applicant’s argument, Perry J concluded:
It follows, in line with the authorities, that cl 11.3 of Direction 65 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.[81]
[79] FYBR v Minister for Home Affairs [2019] FCA 500.
[80] FYBR v Minister for Home Affairs [2019] FCA 500 [21].
[81] FYBR v Minister for Home Affairs [2019] FCA 500 [42].
On appeal to the Full Federal Court, the majority of the Court (Charlesworth and Stewart JJ) essentially concluded that paragraph 11.3 contained a statement of the government’s views as to the expectations of the Australian community that must be applied,[82] that it is not for the decision-maker to make his or her own assessment of the community expectations,[83] and that in the context of Direction 65, community expectations as expressed normatively are what the Government says that they are (even though ascertainable community expectations might be quite different).[84] In essence, the judgment is authority for the proposition that it is not the decision-maker who makes an assessment of community values on behalf of the community, and that those values are expressed as norms in Direction 65. The applicant’s special leave application to the High Court of Australia was dismissed.[85]
[82] FYBR v Minister for Home Affairs [2019] FCAFC 185 [66].
[83] FYBR v Minister for Home Affairs [2019] FCAFC 185 [67].
[84] FYBR v Minister for Home Affairs [2019] FCAFC 185 [91].
[85] FYBR v Minister for Home Affairs [2020] HCATrans 056.
The Applicant’s criminal conduct is serious. The Tribunal is satisfied that the Australian community expects that the Australian Government should not revoke the cancelation of the Applicant’s visa because his conduct is serious.
The Tribunal gives this consideration significant weight against revocation.
However, this is moderated as the Applicant is to be afforded under paragraph 5.2(5) of the Direction the benefit of a higher level of tolerance. As mentioned previously, the principle at the new paragraph 5.2(5) now indicates that Australia ‘will generally’ afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.[86] Direction 99 introduced to this principle that the level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years. The Applicant has been in Australia for most of his life, including during the majority of his formative years.
THE OTHER CONSIDERATIONS
[86] In Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802, the Court rejected the applicant’s submission that ‘most of their life’ in cl 6.3(5) of Direction No 79 (as per para 5.2(5) of Direction No 99) meant ‘most of their adult life’: at [32]. That is, it found that the meaning is plain and that a higher level of tolerance may be afforded to non-citizens who have spent most of their life in Australia, not ‘most of their adult life’.
Legal consequences of the decision
At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The Direction divides the considerations to be applied in this paragraph into two sections:
(1) non-citizens covered by a protection finding; and
(2) non-citizens not covered by a protection finding.
Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.
Non-refoulement obligations is not confined to the protection obligations to which s 36(2) of the Act refers.[87] It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
[87] See Ibrahim v Minister for Home Affairs [2019] FCAFC 89 [103].
The Applicant has made an application for a protection visa, essentially on the basis of his HIV positive status and homosexuality. He also claimed that he would be unable to access medical and community services in Portugal, and that he would suffer if he did not have the assistance of his family.[88] A delegate of the Minister, found that the Applicant did not meet s 36(2)(a) or s 36(2)(aa) of the Act. Although accepting that the Applicant is homosexual and HIV positive, the delegate found that relevant country information supported a finding that there is not a real chance or a real risk of the Applicant facing serious or significant harm as defined.[89] The delegate noted that country information supported a conclusion that the Applicant would be able to access health care in Portugal, and that the “majority of Portugal’s population supports equal rights regardless of sexual identity, and the State has implemented wide-ranging and strong legislation to protect against discrimination, hate speech, violence, and other forms of bigotry against the LGBTIQ people”.[90]
[88] RTB1, 1704-1721, Ex 10.
[89] RTB1, 1716, Ex 10.
[90] RTB1, 1716, Ex 10.
On review, a Member of the Migration & Refugee Division (MRD) of the Tribunal was not satisfied that the Applicant met the criteria under s 36(2)(a), or s 36(2)(aa) of the Act.[91] On judicial appeal, the Tribunal’s decision was the quashed and remitted to the Tribunal for reconsideration. It is currently pending in the MRD. The Applicant confirmed that he has not been invited to a hearing by the MRD yet.
[91] RB1, 1625, Ex 10.
The Tribunal is satisfied that the Applicant’s protection claims and non-refoulement obligations have not been finally determined and that he is therefore a non-citizen who is not covered by a protection finding.[92] As such, the appropriate course is to defer the assessment of the claims to the MRD and it is not necessary for this Tribunal to determine whether non-refoulement obligations are engaged in respect of the Applicant.
[92] Direction 99 [9.1.2].
In light of the above, the Tribunal gives this consideration neutral weight.
Extent of impediments if removed
Paragraph 9.2 of the Direction requires the Tribunal to 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.
Since the age of nine years, the Applicant has lived in Australia. Although the Applicant has some relatives in Portugal, his mother, siblings, nieces, nephews and their families are all in Australia. He has limited skills in the Portuguese language. He has never travelled overseas. He has some practical skills having worked as a cleaner and a form worker on building sites. The evidence before the Tribunal strongly suggests that his health conditions are challenging and that he requires ongoing care and treatment. The Applicant suffers from multiple conditions including HIV, a chronic major depressive disorder, or persistent depressive disorder.

In his report, Dr Allnutt opined that the Applicant:[93]
“probably will continue to experience depressive symptoms arising from his persistent depressive disorder during those times, but I cannot say this with certainty.
[The Applicant] would be at a significant disadvantage as compared to a person of normal mind given his recurrent and/or persistent depressive condition. His disadvantage is further compounded by what appears to be cognitive difficulties as well as his HIV, which is at risk of impacting on his mental state going forward. [The Applicant] has not lived in Madeira since age 10, has limited command of the language, he has no significant social supports that can be necessarily relied on (even if assumptions can be made), his prospects of employment in my view are limited, he would move into an environment already as a person who tends to have difficulties with interpersonal relationships and is anxious about mixing with people and anxiety and he is likely to become relatively reclusive and unsupported, all of which will aggravate his mental state and is at risk with aggravation of depression. There would also be risk of harm to self. All the above factors are associated with increasing risks for deterioration in mental state and aggravation of mental conditions. In my view if this man is deported, he is likely to experience a deterioration in his mental state with aggravation of his mental condition.[94]
[93] RB1, 178-189, Ex 10.
[94] RB1, 188-189, Ex 10.
The Tribunal accepts that if removed to Portugal, the Applicant is likely to experience a deterioration of his mental state, that he would face difficulty in re-establishing himself in Portugal due to separation from his family in Australia and his medical conditions. He is likely to face challenges in finding accommodation, employment, and is unlikely to be able to maintain access to the same social, medical and economic support as in Australia. The fact that he suffers from HIV and major depressive disorder, or persistent depressive disorder means that, although he might be able to access comparable services in Portugal, this would not be without significant challenges given his likely deterioration and as he has established ongoing relationships with his medical and other health practitioners.
The Tribunal has considered the Applicant’s circumstances very carefully, and on the evidence, the Tribunal is satisfied that there are significant impediments to removal.
On balance, the Tribunal gives this consideration significant weight in favour of revocation.
Impact on victims
The Direction requires decision-makers to 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.[95]
[95] Direction 99 [9.3].
The Respondent contended that this consideration may be given weight against revocation as there is some evidence of the impact that the Applicant’s offending conduct has had on the victim, as noted by the Sentencing Court. The Court noted that the victim described being shaken up, crying, feeling sick, and dirty.[96] However, there is no statement before the Tribunal concerning the actual impact of the s 501CA decision on the victim.
[96] RB1, 48, Ex 10.
As such, the Tribunal gives neutral weight to this consideration.
Impact on Australian business interests
At paragraph 9.4 of the Direction, it is noted that 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.
There is no evidence of impact on Australian business interests.
The Tribunal gives neutral weight to this consideration.
Other matters for consideration
Paragraph 9 of the Direction expressly states the other considerations 'are not limited' to the matters listed therein.
There are no other matters for consideration.
CONCLUSION
The Tribunal recognises the significance and complexity of a visa cancellation. The process is not intended to be a formulaic exercise, or a mathematical process, or a simple aggregation of the relevant considerations. On balance, although there are aspects against revocation, the aspects in favour of revocation outweigh those against. The protection of the Australian community, which encompasses the seriousness and nature of the Applicant’s offending conduct and the risk of reoffending, as well as the expectations of the Australian community, weigh heavily against revocation, although the latter is moderated as explained earlier. The considerations in favour of revocation, including strength, nature, and ties to Australia, the best interest of minor children in Australia, and the extent of impediments, outweigh the considerations against revocation.
The Applicant’s offending conduct concerns the Tribunal, so does his disregard to the Department’s warning. However, a very significant change was introduced in Direction 99. The principle at paragraph 5.2(5) of the Direction states that Australia ‘will generally’ (having amended from ‘may’) afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.[97] The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
[97] In Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802, the Court rejected the applicant’s submission that ‘most of their life’ in cl 6.3(5) of Direction No 79 (as per para 5.2(5) of Direction 99) meant ‘most of their adult life’: at [32]. That is, it found that the meaning is plain and that a higher level of tolerance may be afforded to non-citizens who have spent most of their life in Australia, not ‘most of their adult life’.
The Applicant came to Australia at a very young age. He has lived in Australia since 1975 when he arrived at aged nine years. He considers Australia to be his home and he has little connections to Portugal. His family, social and medical networks are in Australia. The Tribunal has given weight to Dr Allnutt’s observations that if forced to leave Australia, the Applicant:
“would be at a significant disadvantage as compared to a person of normal mind given his recurrent and/or persistent depressive condition. His disadvantage is further compounded by what appears to be cognitive difficulties as well as his HIV, which is at risk of impacting on his mental state going forward.”[98]
[98] RB1, 178-189, Ex 10.
Having regard to all relevant material before it, the Tribunal is satisfied that the correct and preferable decision is to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is set aside, and in substitution, the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding one-hundred and four (104) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

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

Dated: 13 November 2023

Date of hearing(s):

17 October 2023

Counsel for the Applicant:

Mr R Chia

Solicitor for the Applicant:

Ms R Alfaro, Alfaro Lawyers

Solicitor for the Respondent:

Mr J Hutton, Australian Government Solicitors

Date of hearing(s):	17 October 2023
Counsel for the Applicant:	Mr R Chia
Solicitor for the Applicant:	Ms R Alfaro, Alfaro Lawyers
Solicitor for the Respondent:	Mr J Hutton, Australian Government Solicitors