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

Jama and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 134 (5 February 2021)
Division:GENERAL DIVISION
File Number: 2020/7720
Re:Jamaal Jama
APPLICANT

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

DECISION
Tribunal:L M Gallagher, Member
Date:5 February 2021
Place:Perth

The Tribunal affirms the Reviewable Decision of a Delegate of the Respondent dated
12 November 2020 not to revoke the mandatory cancellation of the Applicant’s visa.
...............[Sgd].........................................................
L M Gallagher, Member
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – criminal record – aggravated armed robbery – driving offences –– Direction No. 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to New Zealand – impact of COVID – 19 pandemic – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Migration Act 1958 (Cth) – ss 198, 499, 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G, 501G(1), 501G(2)
Migration Regulations 1994 (Cth) – reg 2.55(3), 2.55(5)
CASES
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs (2019) 272 FCR 454
HWYY and Minister for Home Affairs (Migration) [2018] AATA 4602
JFSQ and Minister for Home Affairs [2019] AATA 616
Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5165
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 79: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (20 December 2018) – paras 6.1, 6.1(3), 6.2, 6.3, 6.3(2), 6.3(3), 6.3(4), 6.3(5), 7(1)(b), 8, Part C – 13(1), 13(2), 13.1, 13.1(1) ,13.1(2), 13.1(2)(a), 13.1(2)(b), 13.1.1, 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2, 13.1.2(1), 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.2(1), 13.2(4), 13.3, 13.3(1), 14, 14.1, 14.2, 14.2(1), 14.3, 14.3(1), 14.4, 14.4(1), 14.5, 14.5(1)
REASONS FOR DECISION
L M Gallagher, Member
5 February 2021
INTRODUCTION

This is an application for a review of a decision made by a delegate of the Respondent

(the Delegate) on 12 November 2020 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act), the mandatory cancellation under s 501(3A) of the Migration Act of the Applicant’s Special Category (Class TY) (Subclass 444) visa (the visa) (the Reviewable Decision).
The application for review is made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
BACKGROUND
The Applicant is a 30-year-old man who was born in Somalia and is a citizen of

New Zealand.[1]
[1] R1, G11, page 56 and G12, page 74.
The Applicant first arrived in Australia on 18 November 2008 when he was 17 years old as the holder of a Special Category (Class TY) (Subclass 444) visa.[2] The Applicant has subsequently held a number of Special Category (Class TY) (Subclass 444) visas,[3]

the most recent having been granted on 3 November 2014.[4]
[2] R1, G12, page 74.
[3] The subsequent visas were issued to coincide with the Applicant’s travel to New Zealand (in February 2009 to complete year 13, in January 2011 to complete his first year of university, and in August 2010 for approximately three months to accompany his mother to Somalia to visit his grandfather) and to Kuala Lumpur for a holiday in 2014. The Applicant has not travelled to New Zealand since November 2011 and has remained in Australia since November 2014. See A1 at [4] to [8] and R1, G12.
[4] R1, G12, page 74 and R1, G32, page 101.
Between 2011 and 2019, the Applicant has held various employment positions including as a store person, a security officer, a labourer and an Uber driver. The Tribunal understands the Applicant’s drivers’ licence was disqualified for three months in or around November 2016.[5]
[5] A1 at [13].
On 7 December 2012, the Applicant was found in possession of cannabis, as follows:[6]
Traffic Stop conducted on White Commodore [licence plate] after being seen leaving known drug house – [address].
Driver and passenger of vehicle searched with nil items found. Search of vehicle conducted a small clip seal bag containing 1.36 grams of Cannabis found under the floor mat in the front passenger foot well.
JAMA was sitting in passenger seat. JAMA interviewed under caution and admitted ownership, and its intended use. JAMA confirmed that he purchased the drugs from [address].
CIR [number] issued to JAMA.
[6] R2, SG4, page 174.
On 18 April 2019 and 2 May 2019 respectively, the Applicant was fined $200 for no authority to drive (fines suspended).[7] On 12 November 2019, the Applicant was convicted of aggravated armed robbery and sentenced to four years’ imprisonment.[8] The Applicant’s offending history is summarised as follows:[9]
[7] R1, G7.
[8] R1, G7 and G8.
[9] A Ministry of Justice Record dated 22 December 2020 confirms the Applicant has no criminal convictions in New Zealand.

Court

Offence

Date offence committed

Sentencing Date

Court Result

Perth Supreme Court of Western Australia

Aggravated Armed Robbery

29 January 2017[10]

12 November 2019[11]

Imprisonment of four years concurrent from 21 November 2018

Perth Magistrates Court

No authority to drive (fines suspended)

21 March 2019

2 May 2019

Fine $200

Perth Magistrates Court

No authority to drive (fines suspended)

24 February 2019

18 April 2019

Fine $200

[10] The Applicant committed the Aggravated Armed Robbery offence on 29 January 2017. The Applicant was released on bail on 1 June 2017 before being remanded in Hakea prison on 29 July 2017. The Applicant was released on 31 July 2017 and remained in the community until he was again remanded on 30 October 2017. The Applicant was again released on 9 March 2018. See A1 at [15] and [16].
[11]

Court	Offence	Date offence committed	Sentencing Date	Court Result
Perth Supreme Court of Western Australia	Aggravated Armed Robbery	29 January 2017[10]	12 November 2019[11]	Imprisonment of four years concurrent from 21 November 2018
Perth Magistrates Court	No authority to drive (fines suspended)	21 March 2019	2 May 2019	Fine $200
Perth Magistrates Court	No authority to drive (fines suspended)	24 February 2019	18 April 2019	Fine $200

On 16 December 2019, the Applicant was notified that the visa was cancelled under
s 501(3A) of the Migration Act (the Cancellation Decision). The Delegate was satisfied that the Applicant did not pass the character test on the basis that he had:[12]
a substantial criminal record within the meaning of s501(6)(a) on the basis of s501(7)(a), (b) or (c) of the Act. Under s501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
[12] R1, G32, pages 101 and 102.
The notice of visa cancellation dated 16 December 2019 invited the Applicant to make representations about revoking the Cancellation Decision.[13]
[13] R1, G32, page 102.
On 8 January 2020, the Applicant made submissions in support of revocation of the Cancellation Decision and provided evidence in support of his request.[14]
[14] R1, G10 to G31.
On 6 May 2020, the Applicant was notified that the Department of Home Affairs

(the Department) had received further information which may be taken into account when deciding whether to revoke the Cancellation Decision.[15] The Applicant was again invited to comment on this information.[16]
[15] R1, G33.
[16] There does not appear to be any evidence before the Tribunal that the Applicant responded to this invitation.
On 7 October 2020, the Department sought further information from the Applicant regarding the rehabilitative courses and programs the Applicant indicated that he had completed, along with any other information the Applicant would like the decision-maker to have.[17]
[17] R1, G34. There does not appear to be any evidence before the Tribunal that the Applicant responded to this request.
After considering the Applicant’s representations, the Delegate made the Reviewable Decision on 12 November 2020.[18] On 13 November 2020, the Applicant acknowledged receipt of the Reviewable Decision, which was hand-delivered to him the same day.[19]
[18] R1, G6, page 14.
[19] R1, G36. The Tribunal is satisfied that the Minister gave the Applicant written notice of its decision in accordance with ss 501G(1) and 501G(2) of the Migration Act in the prescribed manner, noting that: pursuant to reg 2.55(3) of the Migration Regulations 1994 (Cth) (the Regulations), the Minister can give a document by handing it to the person personally; and pursuant to reg 2.55(5) of the Regulations, the person is taken to have received the document when it is handed to the person.
On 20 November 2020, the Applicant lodged an application in the General Division of the Tribunal for review of the Reviewable Decision.[20] Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
[20] R1, G2.
The Tribunal’s decision must be made within the 84-day period after the day on which the Applicant was properly notified of the Reviewable Decision in accordance with s 501G of the Migration Act. If the Tribunal does not deliver a decision by the end of this date, the Reviewable Decision will be taken to be affirmed under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (s 500(6L) of the Migration Act).
ISSUES
The task for this Tribunal is to consider whether it should exercise the power in s 501CA(4) of the Migration Act in favour of revoking the mandatory cancellation of the visa.
In doing so, this Tribunal must determine the following:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)
if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked

(see s 501CA(4) of the Migration Act) having regard to the primary and other considerations in Direction No. 79: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No. 79).[21]
[21] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 79: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (20 December 2018).
THE HEARING AND THE MATERIAL BEFORE THE TRIBUNAL
The Application was heard on 18 January 2021. The Applicant appeared by videoconference. The parties’ representatives appeared in person. The Applicant was represented by Ms Alice Graziotti of Estrin Saul Lawyers. The Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers.
The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant called the following witnesses, all of whom gave evidence by telephone and whose documentary evidence is listed in paragraph 20 below:
(a)Mr Ahmed Yusuf (Applicant’s friend);
(b)Mr Mustaf Jama (Applicant’s cousin);
(c)Dr Phil Watts (Psychologist); and
(d)Ms Hasda[22] Jama (Applicant’s sister).
[22] Throughout the documentary evidence, the Applicant’s sister Hasda’s name also appears as Hafsa. At the hearing, Ms Jama confirmed she uses these names interchangeably (transcript, page 51 at [30]–[35]). For ease of reference, the Tribunal will refer to Ms Jama as Hasda throughout this decision as this is how her name is written on most of the documentation.
The Tribunal admitted the following documents into evidence at the hearing:
(a)
Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated

15 December 2020 (A1);
(b)Applicant’s bundle of evidence filed on 16 December 2020, being (together, A2):
(i)Statutory declaration of Mustafe Gabose sworn on 14 December 2020 (A2a);
(ii)Applicant’s statement dated 16 December 2020 (A2b);
(iii)Statutory declaration of Sharmarke Sabriye (undated) (A2c);
(iv)
Department of Justice Treatment Assessment Report dated

18 November 2019 (A2d);
(v)Parole Order issued by the Prisoners Review Board on 4 November 2020 (A2e);
(vi)Letter from A Elmi, Roots TV Community Media Centre (Roots TV) (undated) (A2f);
(vii)Extract of documents produced under summons by the Department of Transport (A2g);
(viii)Letter from Ian Patrick, MSS Security dated 18 September 2013 (A2h);
(ix)
Extract of MSS Security rosters dated December 2013 and

March 2014 (A2i);
(x)Email confirming Applicant’s enrolment for study of “Operate Aircraft Refuelling Nozzle” at Polytechnic West dated 20 November 2014 (A2j);
(xi)Form confirming Applicant’s withdrawal from study of “Cert IV Ground Operation & Services” at Polytechnic West dated 21 November 2014 and Enrolment Invoice/Receipt for study of “S636 – Certificate IV in Aviation (Ground Operations and Service)” at Polytechnic West dated 11 July 2014 (A2k);
(xii)
Email from Zoom Recruitment confirming temporary position dated

22 September 2017 (A2l);
(xiii)Payslip for The Reject Shop WA, printed 12 October 2017 (A2m);
(xiv)Payslip for Primo Moraitis Fresh – WA, payment date 13 December 2018 (A2n);
(xv)Payslip for Sealanes WA, payment date 31 January 2019 (A2o);
(c)Applicant’s Reply to the Respondent’s Statement of Facts, Issues and Contentions dated 13 January 2021 (Applicant’s reply) (A3);
(d)Applicant’s further bundle of evidence filed on 13 January 2021, being (together, A4):
(i)Statutory declaration of Hasda Jama sworn on 29 December 2020 (A4a);
(ii)Statement of Mohamed Aideed dated 29 December 2020 (A4b);
(iii)Statutory declaration of Mustaf Jama sworn on 30 December 2020 (A4c);
(iv)Statutory declaration of Ahmed Yusuf sworn on 6 January 2021(A4d);
(v)
Statutory declaration of Fatima Diriye[23] and Abdi Good[24] sworn on
[23] According to the Applicant, the Applicant’s mother Fatima Diriye also goes by the name Basra Abdi Handule (R1, G11, page 56).
[24] The Applicant’s father.

13 January 2021 (A4e);
(vi)Applicant’s statement and photographs (undated) (A4f);
(vii)Ministry of Justice of New Zealand record provided 22 December 2020 (A4g);
(viii)
Letter from Abdirisak M. Artan (Furqan Islamic Association), dated

1 January 2021 (A4h);
(ix)
Letter from Dr Hassan M Egal (Somali Community Association), dated

5 January 2021 (A4i);
(x)
Psychological report by Dr Phil Watts (psychologist) dated 12 January 2021 (A4j), curriculum vitae of Dr Phil Watts and briefing letter dated

10 December 2020;
(xi)Letter from A Elmi, Roots TV (undated)[25] (A4k);
(e)Statement of Hasda Jama dated 13 January 2021 (A5);
(f)A 145-page set of “Section 501 – G documents” (G documents) numbered G1 to G36 (R1);
(g)A 180-page set of “Supplementary G-documents” numbered 1 to 5 (R2); and
(h)
Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated

23 December 2020 (R3).
[25] This document duplicates A2f other than it being an unsigned version.
The Tribunal has taken into account the letters of support, witness statements and statutory declarations of the Applicant’s family, friends and community representatives previously provided and contained within A1, A2, A4, A5 and R1.[26]
[26] See paragraph 20 above.
The Tribunal notes that the Applicant’s written witness statements consist of:
(a)Applicant’s statement dated 16 December 2020 (A2b);
(b)Applicant’s statement and photographs (undated) (A4f); and
(c)
matters addressed in the Applicant’s personal circumstances form dated

8 January 2020 (R1, G11).
The Tribunal has reviewed all of the evidence before it and refers to relevant materials below.
LEGISLATIVE FRAMEWORK
Migration Act
Mandatory cancellation of a visa under s 501(3A) of the Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by

subsection (7)); or
…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; or …
(Original emphasis.)
Power to revoke cancellation decision
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No. 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.

On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No. 79 under s 499 of the Migration Act, which commenced operation on

28 February 2019. This Direction replaced the previous Direction No 65: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under
s501CA (22 December 2014) (Direction No 65).
Paragraph 6.1 of Direction No. 79 sets out the “Objectives” of the Migration Act, with

paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a

full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No. 79 provides “General Guidance” as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No. 79 sets out “Principles” which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(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)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 to 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. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(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. However, Australia may afford a higher level of tolerance of 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.
(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 should be allowed to come to, or remain permanently in, Australia.
(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 in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction No. 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No. 79,[27] with regard to the specific circumstances of the case (paragraph 13(1) of Direction No. 79). Specifically, paragraph 13(2) of Direction No. 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
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.
[27] Part C of Direction No. 79 is the applicable Part in the present application because it relates to the exercise of discretion to revoke a mandatory cancellation of a non-citizen’s visa on character grounds.
Paragraph 14(1) of Direction No. 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
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.
Paragraph 7(1)(b) of Direction No. 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
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.
Further guidance as to how a decision-maker is to apply the considerations in

Direction No. 79 can be found in paragraph 8, “Taking the relevant considerations into account”, which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
In accordance with s 501CA(4)(b)(i) of the Migration Act, the Tribunal must first consider whether the Applicant passes the “character test” as that term is defined in s 501(6) of the Migration Act.
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As a result of the sentence of imprisonment of four years imposed by the Perth Supreme Court of Western Australia on 12 November 2019, the Applicant does not pass the character test under ss 501(6)(a) and 501(7)(c) of the Migration Act. The Applicant also conceded that he does not pass the character test.[28]
[28] A1 at [25] and transcript, page 7 at [10]–[15].
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Having determined the Applicant does not pass the “character test,” the Tribunal must now determine whether there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
The Applicant contends that the Applicant’s low risk of offending, the strength of his ties to Australia, the impact that cancellation would have on his family members (including minor children) and the positive contributions he made to Australia prior to and following the Aggravated Armed Robbery offence weigh in favour of revocation.[29]
[29] A1 at [39].
The Respondent is of the view, however, that the correct and preferable decision is to refuse to revoke the Cancellation Decision, on the basis that the principles and considerations in Direction No. 79 weigh against revocation.[30]
First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction No. 79)
[30] R3 at [4].
Paragraph 13.1(1) of Direction No. 79 provides that:
(1) When considering protection of the Australian community, decision-makers should 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Paragraph 13.1(2) of Direction No. 79 then provides:
(2)Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date;

and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1(2)(a) of Direction No. 79)
Paragraph 13.1.1(1) of Direction No. 79 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to 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 subparagraph (b) above, the sentence imposed by the courts 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;
(Emphasis added).
In determining whether the Applicant’s conduct should be viewed as serious, the Tribunal notes the facts and circumstances of the Applicant’s offences and the sentences and fines imposed.
The circumstances of the Applicant’s aggravated armed robbery offence committed on

29 January 2017 and related comments are set out in the sentencing remarks of

Judge Curthoys of the Supreme Court of Western Australia, dated 12 November 2019:[31]
[31] R1, G8, pages 29 to 40.
The maximum penalty for the count on the indictment is imprisonment for life. … There was no issue as to the manner of the offending, and that offending was that at about 2.30pm on 29 January 2017 the offender and his co-offender were at the Caltex service station on Great Eastern Highway at Rivervale. They were there to meet [victim], where they had arranged to meet under the guise of wanting to sell some second-hand mobile phones to her employer.
Both men were unknown to the victim. They approached her car, which was in the car park of the service station. The co-offender was carrying a bag and got into the front passenger seat of her car. The offender got into the rear right-hand passenger seat, that is, immediately behind the driver’s seat, and, effectively, other than leaving through the driver’s door if she had sufficient gumption, she was basically, hemmed in, and it would have required very real courage to have jumped out through the driver’s door.
The co-offender and the offender asked the victim to drive to the rear of the service station, but she declined. She instead drove around to the front of a nearby liquor store, as she was suspicious of the men and knew that there would be a CCTV camera at the front of the store. Shortly after she pulled in to the liquor store car park the offender said, “Let’s make a deal.” He pulled out a knife and held it to the side of her neck. The co-offender then demanded the victim give him money, and she said that the offender would stab or kill her if she didn’t comply.
The co-offender snatched the victim’s handbag and took $450 cash from within her purse. … Both men began demanding more money. The offender moved the knife from the victim’s throat to the right side of her body near her ribs and put his hand around her throat, such that she couldn’t breathe properly. The victim threw to the offender a glove inside of which was $4000 cash, which the victim had been transferred by her employer as the purchase price of the phone she had been dispatched to purchase from the offenders.
The offender threw the money to his co-offender, who put it into his bag. The

co-offender then took the victim’s phone, which had been sitting on her lap. The

co-offender then left the car. The offender remained and continued to demand money, with a knife to the victim’s ribs and his hand around her throat. A short time later he released the victim. She got out of the car and the offender followed. He said to the victim, “I know where you live so just watch what you do,” before leaving the scene in the same direction as the co-offender.
Both men got into a nearby waiting getaway vehicle which drove off at speed…
…offences of armed robbery, especially committed in circumstances of aggravation, are inherently serious. That much can be ascertained from the maximum penalty of life imprisonment… the present case can’t be described as being at the highest end of seriousness. There were, of course, more serious weapons that could have been used, but nevertheless, to have a knife held against you in the circumstances of this matter must have been, for the victim, an extremely distressing event…
…The victim was, undoubtedly, vulnerable, as I’ve said. She had two men, one beside her, one behind her. Her opportunity to resist, particularly, was [sic] the weapon was pulled, was very limited. I accept … the offending was not of particularly short duration…
the offender was actually armed with a knife and he … not only produced it, but held it directly to the victim’s neck and side, and had the victim panicked, of course, there was the risk of a penetrating wound … [Judge Curthoys accepts] the offending was planned and premeditated, a factor which is aggravating…
It seems to me that the overwhelming problem is poor decision-making skills. I note the recollection that – he says he has no recollection in the report, but I’ve mentioned my reservations about that…
I accept … that this is an aberration, but nevertheless, having regard to the nature of the offending there is a very significant need for general deterrence.
(Emphasis added.)
In his statement, the Applicant gave the following evidence regarding his aggravated armed robbery offence:[32]
[32] A2b at [20]–[31].
20.On 29 January 2017 I woke up at about 10 o’clock, we had planned to go to a festival called ‘One Day Sunday’ in the city. It was a spur of the moment decision to go, we had only organised it the day before. On the day, I drove my car to [co-accused’s] house…he lives in the [suburb] area. I remember it was about lunchtime. I parked my car on the front lawn, I remember seeing some other cars parked on the lawn as well. I went inside, washed my face and put on some aftershave and prepared to go to the festival. Before we went to a festival I had some drinks. We drank more and more and I got pretty wasted. I had a few MDMA pills as well. Then someone offered me some methamphetamine to try. I had never tried meth before. They said it would make you feel sober and you will feel good, and I tried some. I did not take a knife or weapon with me to the festival.
21.I don’t remember anything that happened after that. I woke up in a carpark in Perth city. My phone was ringing constantly, and when I picked it up it was my sister saying the police were at the house looking for me. I went to the police station straight way [sic] in Cannington to see what the matter was and I was arrested under suspicion of having committed aggravated armed robbery.
22.I spent about five or six months on remand in Hakea Prison and Casuarina Prison before I was granted bail.
23.I was charged with committing the offence with another guy called [co-accused]. [Co-accused] was a friend’s housemate who I had met a few days before the One Day Sunday festival. He was living at my friends’ house and I had probably met him three or four times including that day. I don’t even know him that well and the police say I did this crime with him…
24.At the time the offence was committed I had just had my 26^th birthday. I used to use cannabis every few months in a social setting, and I had never tried meth before. I don’t want to use this as an excuse – it was my choice to drink so much and to take drugs – but it is the only explanation I can give for why I did something like this.
25.I pleaded not guilty to the charge because I just could not believe that it was me who did this offence. It is not something I would do if I had any awareness of what was happening. It was hard for me to believe that it was me who did it. However, I accept that I have been found guilty by a court and jury after all the evidence was provided and I am not trying to argue now that I did not do this crime if I was found guilty of it. I also understand the court gave me a sentence of imprisonment because of the seriousness of the crime and the need for general deterrence.
26.I did a number of courses before I was sentenced, including the Alcohol and Other Drugs program, the Introduction to Workplace Health and Safety and Life Skills. I then started my prison term on 12 November 2019.
27.I was released from prison on parole on 19 November 2020 and am currently in immigration detention.
28.I feel pretty horrible about this offence. To be honest it has ruined my whole life. I feel like I am worthless and I will never be the hardworking individual I was once. All my life I have been the main provider for my family and my Family [sic] is suffocating and suffering more due to this situation. I have young siblings and my mother and father does [sic] not speak English and has no other skills.
29.I currently suffer from nightmares and have constant sleeping problems. This process has traumatised me and had a big impact on me and my family. I don’t have the same relationship with them as I used to and I cannot provide for them and they cannot depend on me.
30.My sleeping pattern has worsened and I have devolved [sic] chronic sleep disorders. I regularly went to the GPs to get medications for anxiety and antidepressants after I was charged. I consistently wake up in the middle of the night and have nightmares.
31.I feel pretty sad, this experience has been a big wake up call for me and a reality check. I would never wish anyone harm – I am not that kind of person. I feel remorse for what the victim went through. I wouldn’t wish harm on anyone, let alone what she went through. That’s a horrible thing to do.

At the hearing, the Applicant gave evidence that regarding the events of 29 January 2017, the only reason he did not plead guilty to committing aggravated armed robbery was because he did not believe it was him that committed the crime. The Applicant said it was so hard for him to accept that it was actually he who did it.[33]
[33] Transcript, page 13 at [40].
The Applicant said that since his drug use on 29 January 2017 he had used cannabis while in home detention, which was a “really bad decision”.[34] The Applicant said he had not taken any drugs since then and played a lot of sports to help him stay off drugs.[35] The Applicant also said he was seeing a psychologist in prison and while he was under home arrest.[36]
[34] Transcript, page 15 at [20].
[35] Transcript, page 15 at [25]–[30].
[36] Transcript, page 15 [35]. Ms Graziotti advised at hearing that this psychologist was stranded offshore due to COVID19 and he could not provide a report due to not being able to access his notes (transcript, page 57).
During cross-examination by Mr Burgess, the Applicant said that prior to his arrest, probably from about 2015, he had smoked cannabis once or twice every couple of months.[37]
[37] Transcript, page 18 at [40]–[45].
As to his being found in possession of cannabis in December 2012 which he claimed to be his own,[38] the Applicant recalled and accepted this.[39] The Applicant said that the drugs were not his. The Applicant said that the drugs belonged to his mate but he said the drugs were his own as his mate was going through a lot at the time. The Applicant said he was not using cannabis at that time.[40] When asked by Mr Burgess, the Applicant said that he did not accept that he had gone with a friend to buy drugs, but that he had waited in the car when his friend went into a house to buy drugs.[41]
[38] R2, SG4, page 174.
[39] Transcript, page 19 at [5]–[10].
[40] Transcript, page 19 at [10]–[15].
[41] Transcript, page 19 at [40]–[45].
When asked, the Applicant said that as part of his bail (granted approximately five months after his incarceration) he was required to submit for urinalysis testing, for which he returned a positive sample in July 2017.[42] The Applicant said his bail was revoked as a result, and then he was back out on bail within a few days.[43]
[42] R2, SG3, page 161.
[43] Transcript, page 20 at [15]–[25].
The Applicant said that at that time he was aware that using illegal drugs would result in him going back to prison and he continued to use cannabis regardless.[44]
[44] Transcript, page 20 at [25].
The Applicant said that on 29 October 2017, he was scheduled to give a urinalysis sample in accordance with his bail conditions and he attended with another man who gave the sample using the Applicant’s identification.[45] The Applicant admitted he was found out that same day and asked to come back to give another sample, which he did.[46] The Applicant also admitted that at that time he had set out to deceive his bail conditions because he knew he had been taking cannabis and that he would return to prison if he used cannabis.[47]
[45] Transcript, page 20 at [30]–[35]. See R2, SG3, page 55.
[46] Transcript, page 20 at [40]–[45].
[47] Transcript, page 21 at [5].
As to the matters set out in paragraph 20 of the Applicant’s statement,[48] the Applicant reiterated that he had never tried methamphetamine before 29 January 2017 but that he had taken MDMA once every couple of months.[49] The Applicant said while he said in his statement he did not take a knife or weapon with him to the festival, he accepts that that was not the finding of the judge or jury.[50] The Applicant said that he said he did not take the knife with him to the festival because he does not remember taking it, or even leaving the house that day. The Applicant said he “just had memory loss, committing the crime”.[51] When it was put to him that the judge did not accept that the Applicant had suffered memory loss in committing the crime, the Applicant said he could not recall.[52]
[48] See A2b at [20] extracted at [50] above.
[49] Transcript, page 24 at [10].
[50] Transcript, page 24 at [15]–[20].
[51] Transcript, page 24 at [20]–[35].
[52] Transcript, page 24 at [35]. See for example, extract at [49] above.
When asked by Mr Burgess, the Applicant agreed the armed robbery for which he was convicted was a planned robbery targeting a specific person.[53]
[53] Transcript, page 24 at [40].
The Applicant said that while he was first on remand, he had completed a drug and alcohol course, although he was unsure if he had provided the related certificate.[54]
[54] Transcript, page 24 at [45] and 25 at [5].
The Applicant said that at the time of his offending, he was staying with his cousin, Ayaan, and her six young children,[55] he was working, he had the emotional support of his parents and siblings and notwithstanding this, took illegal drugs and committed the aggravated armed robbery.[56]
[55] Transcript, page 26 at [30].
[56] Transcript, page 25 at [5]–[20].
The Applicant said that whilst in prison in April 2020, he was involved in a fight and was found to have thrown a number of punches at inmates.[57] The Applicant said that he also accepts that whilst in prison in April 2020, he was found to have hidden medication that he was meant to have been taking.[58] The Applicant accepts that he was in breach of the Prisons Act as a result of both of those incidents.
[57] Transcript, page 25 at [40]–[45]. See R2, SG3, pages 110 to 117.
[58] Transcript, page 26 at [5]–[10]. See R2, SG3, pages 118 to 126.
Regarding the Applicant’s traffic offences, police records show that on 24 February 2019 and 21 March 2019 respectively (that is, shortly after the Applicant committed the aggravated armed robbery offence), the Applicant committed the offence no authority to drive and received fines of $200 from the Perth Magistrates Court, which were suspended.[59]
[59] R2, SG4, page 172.
The Applicant has a number of other speeding and traffic infringements incurred between 2010 and 2016, which resulted in him losing his drivers’ licence for a three-month period in late 2016 and early 2017.[60]
[60] A1 at [47] and R2, SG1, page 25.
The Applicant’s evidence regarding his traffic offences committed in 2019 is as follows:[61]
32.I was convicted of two driving offences in 2019 and I was fined $200 each time. I remember being told that I had the wrong licence to drive a manual car. In New Zealand I had a licence that allowed me to drive both a manual car and an auto car and I thought my Australian licence was the same.
33.The first time I was told this I didn’t really understand what I was being charged with. The second time, the police officers explained it clearly to me and after that I stopped driving my manual car and used my family’s automatic car.
34.I have not had any driving convictions since then.
35.After seeing the documents from the Department of Transport, I am not 100% sure whether these convictions were from the times I was stopped and told about having the wrong licence, or whether I was driving while my licence was suspended (from demerit points).
[61] A2b at [32]–[35].
During cross-examination by Mr Burgess, the Applicant said that he was on bail at the time he was caught driving whilst under a licence suspension.[62] When asked if it was in fact incorrect that he was pulled over for “carrying the wrong licence” as he had stated,[63] the Applicant said:[64]
I was carrying the wrong licence, because I was driving a manual car, and my licence said I can only drive auto…
[62] Transcript, page 21 at [5]–[10].
[63] See A2b at [32]–[35] extracted at [65] above.
[64] Transcript, page 21 at [10].
When Mr Burgess pointed out that the driving offence committed on 24 February 2019 was on the basis that the Applicant was driving without authority given his licence had been suspended,[65] the Applicant said that at that time he was not sure and did not recall if his licence had been suspended.[66] The Applicant said he had pleaded guilty to that offence because he did not know he was ineligible to drive.[67] The Applicant said that he would not have driven at all if he knew he was suspended from driving.[68]
[65] See R2, SG2, page 33.
[66] Transcript, page 21 at [15]–[35].
[67] Transcript, page 21 at [40]–[45].
[68] Transcript, page 22 at [5].
The Applicant said that he knew from 24 February 2019, the date he was first pulled over, that he was not allowed to drive a car because his licence was suspended, but on

21 March 2019, less than a month later, he was caught driving again.[69] The Applicant said he accepts he was on bail at the times he committed the two driving offences.[70] When asked by Ms Graziotti, the Applicant said he could not recall exactly, but he believes he got his licence back within months after the incidents in 2019.[71]
[69] Transcript, page 22 at [40]. See R2, SG2, page 31.
[70] Transcript, page 23 at [25].
[71] Transcript, page 27 at [25]–[30].
When taken to the 15 traffic offences listed against his name from 2010 to 2016 as recorded by the Department of Transport,[72] the Applicant accepted that he committed those offences.[73]
[72] R2, SG1, page 25.
[73] Transcript, page 23 at [20].
As to the nature and seriousness of the Applicant’s conduct, the Applicant has stated its awareness that the Tribunal will view the Applicant’s aggravated armed robbery offence as particularly serious as it was committed against a woman and involved a real threat of violence (paragraph 13.1.1(1)(a) and 13.1.1(1)(b) of Direction No. 79). The Applicant further accepts the comments of Judge Curthoys that “offences of armed robbery, especially committed in circumstances of aggravation, are inherently serious”.[74] The Applicant made no submission regarding paragraph 13.1.1(1)(c) of Direction No. 79.
[74] A1 at [44]. See R1, G8, 33, extracted at [49] above.
In the context of paragraph 13.1.1(1)(d) of Direction No. 79, the Applicant has noted that he was sentenced to a total of four years for his aggravated armed robbery offence, backdated to 12 November 2018 with eligibility for parole and was released from prison on

19 November 2020.[75] In this regard, the Applicant has also noted that the statutory maximum penalty available to the Court at the time was life imprisonment[76] and Judge Curthoys’ agreement with the State Prosecution that the Applicant’s case could not be described as being at the highest end of seriousness.[77]
[75] A1 at [45].
[76] A1 at [43].
[77] A1 at [43].
The Applicant submitted that he has no previous convictions, so there can be no trend of increasing seriousness or repeated offending to consider (paragraphs 13.1.1(1)(e) and 13.1.1(1)(f) of Direction No. 79).[78] The Applicant noted that he has not previously received a formal warning about the consequences of offending in terms of his migration status (paragraph 13.1.1(1)(h) of Direction No. 79), and there is no evidence that he has provided false or misleading information to the Department (13.1.1(1)(g) of Direction No. 79). The Applicant also notes that he had not previously committed a crime while in immigration detention while being an unlawful citizen (paragraph 13.1.1.1(i) of Direction No. 79).
[78] A1 at [48].
In summary, in relation to the nature and seriousness of the Applicant’s conduct, the Applicant accepts that his prior conduct is very serious,[79] despite his lack of other criminal history, because:[80]
(a)he received a total term of imprisonment of four years for the aggravated armed robbery offence, notwithstanding that he was released after serving a combined period of approximately two years;
(b)the aggravated armed robbery offence involved the threat of violence against a woman in the company of another person, which is considered very serious regardless of the sentence imposed; and
(c)the driving offences were committed while he was on bail.
[79] Transcript, page 55.
[80] A1 at [49].
The Respondent’s submissions as to the nature and seriousness of the Applicant’s conduct are:[81]
[81] R3 at [31] to [36].
(a)Aggravated armed robbery is a violent offence, which must be viewed very seriously (paragraph 13.1.1(1)(a) of Direction No. 79) and there is no discretion for the Tribunal to view violent offences in some lesser or different light.[82] As stated by the sentencing judge, to have a knife held against you in circumstances such as the above must have been an extremely distressing event for the victim[83] and had she panicked, there was the risk of a penetrating wound.[84]
(b)Further, the offence was committed against a woman. Violence against women is very serious (paragraph 13.1.1(1)(b) of Direction No. 79). As stated by the sentencing judge, the victim was vulnerable (paragraph 13.1.1(1)(c) of Direction No. 79). She had one man beside her and one man behind her (and so was basically “hemmed in”) and her opportunity to resist, particularly once the weapon was pulled, was very limited.[85]
(c)Regard must also be had to the fact that the Applicant has been sentenced to a term of imprisonment for his offending (paragraph 13.1.1(1)(d) of Direction No. 79). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Accordingly, where a Court has sentenced an offender to a term of custodial imprisonment, this must be viewed as a reflection of the objective seriousness of the offences involved.
(d)As to the Applicant’s fines for driving without authority and other traffic infringements leading to his suspended licence, the Respondent noted the following passage by Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 (Bartlett) at [43] and [45]:
There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle. His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.
…
The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community”. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle — be it drinking and driving, driving without a licence, or driving an unregistered vehicle — can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
(Footnote omitted and emphasis added.)
[82] Minister for Home Affairs v Stowers [2020] FCA 407 at [45].
[83] R1, G8, page 33.
[84] R1, G8, page 34.
[85] R1, G8, pages 31 and 34.
The parties agree that the Applicant’s aggravated armed robbery offence was very serious because it was a violent offence committed against a woman. The Applicant accepts that the Tribunal has no discretion to make a different finding[86] and understandably so,[87] and the Tribunal so finds (paragraph 13.1.1(1)(a) and 13.1.1(1)(b) of Direction No. 79). In addition, in relation to the Applicant’s driving and traffic offences, the Tribunal notes that paragraph 13.1.1(1)(a) of Direction No. 79 does not limit the range of offences that may be considered serious. Along with the comments made by Senior Member Tavoularis in the Bartlett[88] decision, this matter was relevantly addressed by Senior Member

Evans-Bonner in QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 (QJYD) at [51]:
Indeed, the Tribunal has often regarded driving offences to be of a very serious nature. Road traffic laws are in place to protect the community, including innocent road users, from harm. Additionally, repeated breaches of road traffic laws tend to indicate a disregard for laws and authority generally, an inability to distinguish right from wrong, and a selfish disregard for the safety of innocent members of the community who share the roads.
[86] Transcript, page 7 at [20].
[87] Transcript, page 55.
[88] Extracted at [74(d)] above.
The Tribunal also accepts the Respondent’s submission that the victim of the Applicant’s aggravated armed robbery offence was vulnerable in the manner described by Judge Curthoys (paragraph 13.1.1(1)(c) of Direction No. 79).[89] The Applicant appears to accept that the victim was a vulnerable member of the community[90]. In the circumstances of the offence, the victim was clearly vulnerable.
[89] See extract at [49] above.
[90] A1 at [57].
The parties also agree and the Tribunal so finds that the Applicant’s four year term of imprisonment for his aggravated armed robbery offence lends to the serious nature of his offending conduct (paragraph 13.1.1(1)(d) of Direction No. 79).
In the circumstances of the present matter, the Tribunal is of the view that paragraphs 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h) and 13.1.1(1)(i) do not apply to the Applicant. The Applicant is of the same view[91] and neither party made any submissions in relation to these paragraphs.
[91] See [72] above.
Based on the analysis of each of the sub-paragraphs of paragraph 13.1.1(1) of Direction No. 79 above, the Tribunal finds that the nature and seriousness of the Applicant’s offences are very serious; offences of which include the driving and traffic offences and particularly the aggravated armed robbery offence. The fact that his aggravated armed robbery offence was a violent crime conducted against a woman placed in a vulnerable situation is of considerable concern to the Tribunal and reflected by the term of imprisonment imposed. This, and his driving without authority on two occasions reflect a disregard for the law, a disregard for public safety and a degree of indifference that cannot be excused. Consequently, the Tribunal finds that paragraph 13.1.1 of Direction No. 79 weighs very strongly against the revocation of the Cancellation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1(2)(b) of Direction No. 79)
A decision-maker must also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No. 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(Emphasis added).
The Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community (paragraph 13.1.2(1) of Direction No. 79).
Nature of harm (paragraph 13.1.2(1)(a) of Direction No. 79)
Regarding the nature of the harm to individuals if the Applicant were to engage in further criminal or other serious conduct (paragraph 13.1.2(1)(a) of Direction No. 79), the Tribunal is of the view that should the Applicant commit further violent or driving offences, particularly while under the influence of drugs, members of the public (including vulnerable persons and innocent road users) could also suffer physical injuries or illness and possible psychological harm.

The Applicant accepts that the nature of the harm to the Australian community should he commit similar offending is serious. The Applicant submitted this is necessarily the case for any person who fails the character test as set out in s 501(6)(a) of the Migration Act as the person must always have committed an offence serious enough to warrant an immediate term of imprisonment.[92] Nevertheless, the Applicant accepts (as found by the sentencing judge) that his victim was vulnerable as “there was a risk of a penetrating wound” if she had panicked while the knife was against her neck and that the offence would have been “extremely distressing for her”.[93]
[92] A1 at [56].
[93] A1 at [57].
The Applicant also accepts that if he were to reoffend in a similar way, it could result in psychological harm and financial loss and could cause individuals to fear that they may be physically harmed.[94] The Respondent noted this acceptance and made a similar submission.[95]
[94] A1 at [58].
[95] R3 at [38].
The Applicant submitted that the nature of the harm that could be caused is serious. The Applicant further submitted, however, that considered cumulatively with the low risk that the Applicant will reoffend (addressed below), the risk the Applicant poses to the community is not unacceptable.[96]
[96] A1 at [59].
The Respondent disagrees and submitted that the nature of the harm to individuals should the Applicant engage in further criminal or other serious conduct is such that any risk of similar conduct in the future is unacceptable.[97]
Likelihood of engaging in further criminal or other conduct (paragraph 13.1.2(1)(b) of Direction No. 79)
[97] R3 at [38].
Next, the Tribunal is required to consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction No. 79).
In the context of what the Tribunal is required to consider in order to determine whether a person poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community, the Tribunal notes the summary provided by Senior Member

Evans-Bonner in HWYY and Minister for Home Affairs (Migration) [2018] AATA 4602 at [77] and [78]:
77.In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359 at [111] (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration & Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [94]–[95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117 at [42]–[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does. [Footnotes omitted.]
78.In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
(Emphasis added.)
Applicant’s evidence
In his statement, the Applicant gave the following evidence regarding his risk of reoffending:[98]
[98] A2b at [36]–[41].
36.I was assessed in prison as not appropriate for courses due to my low risk of reoffending. This meant that a lot of the courses were unavailable to me because I was not considered to be someone with criminogenic needs. I was advised to do voluntary courses if I wanted to study while in prison, so I completed the following courses:
a.career development workshop by Outcare (February 2020);
b.one unit for a Certificate I in Business (August 2020);
c.units for a Food Handler Training Program (February 2017 and November 2019);
d.units for a Certificate I in Information, Digital Media and Technology (January – May 2020);
e.one unit for a Certificate II in Warehousing Operations (March 2018);
f.units for a Certificate I in Entry to General Education (February 2017, August 2019 and July 2020);
g.one unit for a Certificate I in Gaining Access to Training and Employment (November 2019); and
h.first aid/surf living [sic] saving units.
37.I also have not used meth, MDMA or alcohol since the day of the offence.
38.I did use cannabis occasionally after being charged with the offence and released on bail. This was because I was struggling so much with my mental health while I was on home detention – I felt depressed, I wasn’t eating or sleeping. I took cannabis sometimes to help me eat and sleep, which I know was stupid. After being released from remand in March 2018 I stopped using cannabis and I have not used it since then.
39.Instead, I worked hard, supported my family and kept my head down. I saw a psychologist while I was on home detention – Adam Ates at Victoria Park – and I am trying to get proof of this from him to provide to the AAT. I know he provided a letter to the court for sentencing.
40.I believe I would never re-offend again. I don’t think there would be another re-offending as I would make sure I would not surround myself with the wrong crowd of people. I have also gained a number of courses in prison while I was incarcerated. If I was to go back in the community, I have a range of support and family around me to help me get back on track with my life. I would also involve myself in healthy recreational activities to keep me away from the wrong people.
41.To make sure I don’t commit another offence like this again, if released into the community I would go back to work, study part-time, and stay away from negative people and influences. I would be a good citizen. I have other friends who are good friends, who play sports and do community stuff, and who advise me on how to live a better life. Those are the ones I should be hanging around with.
At the hearing, the Applicant gave evidence that:[99]
I believe I'm not a risk of re-offending because what I did was a one-time thing, and that was my first crime I did in my whole lifetime, and, like I said, I did not have my awareness when I was committing the crime. … I was a law abiding citizen, worked for the time when I was in Australia. ... Life can change very quick so I had a lot of thinking in prison as well where I went wrong and that I need to stay away from the people that influence me doing bad stuff. Right now better I deal with the community, just get a job, support my family, like stay away from anybody to do with crime and stuff like that. I believe I will not re-offend, I've learned my mistake and doing two years in prison which was pretty hard for me. It was like a different world. Yes, I believe I won't re-offend again.
(Emphasis added).
[99] Transcript, page 15 at [40]–[45] and page 16 at [5].
Dr Watts’ evidence
In his report dated 12 January 2021, Dr Watts gave the following opinion regarding the Applicant’s risk of reoffending and the adequacy of his efforts to rehabilitate:[100]
[100] A4j at pages 91 and 92.
21.According to the available information, Mr Jama does not have a drug problem. It appears there have been occasions where he has used drugs, and if his account is accepted then the offence occurred on the one occasion where he has used methamphetamine coupled with multiple other drugs. Therefore, if he is not drug using, such an offence would not re-occur.
22.The general variables were not predictive of either anti-social or aggressive features in his personality or characteristics. Therefore, there is nothing to indicate likelihood of reoffending. The Sentencing magistrate considered poor decision making to be the primary cause of offending.
…
23.Mr Jama indicated that he has attempted to the best of his ability to access courses within the prison system which tends to limit access to courses to those who meet select criteria, and Mr Jama explained that he did not meet some of those criteria (deemed a low risk of reoffending). Therefore, he has attempted to attend voluntary courses and it would appear to me that he had done as much as is practical to assist with his rehabilitation.
…
24.The information available was indicative of Mr Jama not having any major criminal history. The sentencing magistrate considered his age sufficient to consider the situation as a partial mitigation.
25.While his age may only be partially significant, in my opinion it is not specifically his age but the lack of pre-existing offending is significant. There is no evidence to indicate that Mr Jama has a history of violence or related problematic behaviour. The context of the offence is fairly typical for offences of young people, where they are subject to peer pressure and use substances which they normally would not use.
…
26.The evidence available was suggestive of Mr Jama being unlikely to be an offender. There is no evidence of anger, aggression, or substance abuse in his general functioning to suggest risk. There is no criminal record except driving related offences. Therefore, one would consider it to be out of character.
…
30.The severity of the offence, as described, is quite serious and, as a result, causes some level of concern. However, there is nothing in my assessment of Mr Jama to suggest that there are particular risk variables which would predict that he would engage in such serious behaviour in the future. There were no indicators such as major addiction to suggest that he would pose a serious risk to the Australian community, noting, however, that the actual offence was a reasonably concerning situation. I would point out that the corrective services also deemed him to be [sic] low risk of reoffending.
At the hearing, Dr Watts gave the following oral evidence:
(a)Having spent some time with the Applicant conducting an interview and administering psychological testing, his overall finding was “there’s nothing to say that it was a risk of reoffending of any sort of notable nature”.[101]
(b)He considered it unusual for a person to have no recollection of committing an offence after taking “so much alcohol or so much drugs”, as normally a person would have some vague recollection of a situation which occurred, especially if an offence took a period of time.[102]
(c)Even so, in his opinion, the factors affecting the risk (of reoffending) are not whether or not an offender can recall what they did, but whether they accept what they have done, even if they did not accept it initially and understand the alcohol and drugs impacted them so badly that they’re then thinking “I wouldn’t do that again”.[103]
(d)In his opinion, the Applicant expressed remorse at the basic level of being sorry for what happened because he got into trouble, and at the higher levels of being sorry for the impact on others and on the victim.[104] Dr Watts said he thinks the Applicant understands his aggravated armed robbery offence was a very serious situation.[105]
(e)As to his capacity for rehabilitation in light of his poor decision-making skills,[106] the Applicant has the ability to think through consequences. The types of things which will help him not to reoffend is to not hang around with people “who are likely to lead him into these situations”, the recognition of the very serious implications of drug use and being aware of the “emotional process”.[107]
[101] Transcript, page 39 at [40].
[102] Transcript, page 39 at [45] and 40 at [5].
[103] Transcript, page 40 at [5]–[15].
[104] Transcript, page 40 at [20]–[30].
[105] Transcript, page 40 at [35]–[40].
[106] See extract of sentencing remarks at [49] above and Dr Watts’ report at [22] extracted at [91] above.
[107] Transcript, page 41 at [10]–[15].
During cross-examination by Mr Burgess, Dr Watts said that:
(a)if someone gave a history of using MDMA every few weeks or months in a social setting, that would potentially increase the risk of relapse of drug use which would increase the risk that someone would reoffend because the (Applicant’s) offending was in a drug-related situation.[108]
(b)The Applicant has not told him that he smoked cannabis (for example, while on home detention) for anxiety.[109]
(c)Dr Watts was unaware that the Applicant had tested positive to cannabis on two occasions while on home detention and subject to urinalysis testing and that his bail was revoked as a result.[110]
[108] Transcript, page 48 at [20].
[109] Transcript, page 48 at [30]–[40].
[110] Transcript, page 48 at [40]–[45].
As to the Applicant’s inability to stay off drugs despite being subject to urinalysis and consequences including having his bail revoked, Dr Watts said:[111]
(a)The fact that Mr Jama was unable to stay off drugs despite being subject to strict urinalysis and serious consequences, he went back to prison when he tested positive, he would change his assessment of the likelihood that the Applicant would stay off drugs in the future.[112]
(b)If a person has mental health conditions, that might increase the risk of reoffending.[113] Anxiety is a sort of diagnostic category and not the sort of mental health condition which may increase the risk of reoffending, but if there’s evidence of other mental health conditions then the increased risk is more likely.[114] The Applicant, when asked by Dr Watts during his consultation, said that he was not on any medication of any kind, including antidepressants, then or in the past.[115]
[111] Transcript, page 49 at [5]–[45] and page 50 [5]–[10].
[112] Transcript, page 49 at [5].
[113] Transcript, page 49 at [15].
[114] Transcript, page 49 at [10]–[15].
[115] Transcript, page 49 at [10]–[30].
Evidence from Applicant’s family, friends and community representatives
A number of the Applicant’s family members, friends and community representatives gave evidence in support of the Applicant. The Tribunal acknowledges that the evidence in paragraphs 96 to 113 below relates to matters broader than the Applicant’s risk of reoffending, which is the heading in this decision under which this evidence appears. However, for ease of reference, this evidence, as it relates to additional relevant considerations (such as the strength, nature and duration of the Applicant’s ties to Australia, the best interests of minor children in Australia and the extent of impediments if removed) appears with all of the relevant evidence from the particular witness under the present heading. The Tribunal has referred back to this evidence when considered later in the decision under the headings for these respective considerations.
Mr Ahmed Yusuf (Applicant’s friend)
In his statutory declaration sworn on 6 January 2021 (A4d), Mr Yusuf gave evidence that he was fully aware of the Applicant’s criminal history, and attributes the aggravated armed robbery conviction to the Applicant being with the wrong crowd at the wrong time.[116]

Mr Yusuf said he personally believes the Applicant is highly unlikely to reoffend, due to his sheer work ethic and him knowing the years he has lost and how remorseful he is.[117]
[116] A4d at [4] and [9].
[117] A4d at [10] to [11].
Mr Yusuf gave evidence that he would provide support to the Applicant with reintegration into the community, and he believes the Applicant has much to offer to his family, friends and the Somali community.[118]
[118] A4d at [13] to [16] and transcript, page 31 at [15].
At the hearing, Mr Yusuf said that if the Applicant were “not to be here” (in Australia) it would have a “substantial effect” on the Applicant’s family because he is a very family orientated person and there is not much family or support for him in New Zealand.[119]
[119] Transcript, page 30 at [20]–[25].
During cross-examination by Mr Burgess, Mr Yusuf said that while he knew the “overview” of the Applicant’s aggravated armed robbery offence, he did not know the “actual incident”.[120] Mr Yusuf said that he was pretty sure the Applicant and another person had stood over a female at a service station and out of fear she just gave her phone to them.

Mr Yusuf said he could not recall if the Applicant mentioned there was a weapon involved.[121]
[120] Transcript, page 32 at [10].
[121] Transcript, page 32 at [10]–[25].
Mr Yusuf stated he was aware of the Applicant’s two driving offences, but had no specific knowledge of them, having become aware of them because he “needed every information about him in order for me to even do a statutory declaration”.[122]
[122] Transcript, page 32 at [30]–[45].
Mr Mustaf Jama (Applicant’s cousin)
In his statutory declaration sworn on 30 December 2020 (A4c), Mr Mustaf Jama[123] gave evidence that he has full knowledge of the Applicant’s criminal history.[124] Mr Mustaf Jama said that if the Applicant were to return to New Zealand, his family, including Mr Mustaf Jama’s four young children,[125] would be devastated and would not move with him as they are settled in Australia.[126]
[123] Mustaf Jama is referred to by his full name in this decision to distinguish between himself and the Applicant, who has the same surname.
[124] A4c at [4].
[125] A4c at [13] and transcript, page 34 at [30].
[126] A4c at [5] and [7].
Mr Mustaf Jama said that he genuinely believes that the Applicant would not repeat the same offences and the Applicant’s previous criminal activities were a wakeup call.[127]
[127] A4c at [10].
At the hearing, Mr Mustaf Jama said that he believes it is unlikely that the Applicant would reoffend and that the Applicant has reflected on his life and learned from his mistakes.[128] Mr Mustaf Jama also said that the Applicant was a loving and caring uncle to his four daughters (aged between eight and one and a half) who would be greatly affected if the Applicant were to be removed,[129] as would his family and the Somali community.[130] Mr Mustaf Jama said that he would be happy to support the Applicant in any way he wanted if the Applicant were able to stay in Australia.[131]
[128] Transcript, page 35 at [5]–[15].
[129] Transcript, page 35 at [20]–[30].
[130] Transcript, page 36 at [5]–[10].
[131] Transcript, page 35 at [35].
During cross-examination by Mr Burgess, Mr Mustaf Jama said that at the time of the Applicant’s offending, the Applicant was living with his parents.[132]
[132] Transcript, page 36 at [30].
When asked about his knowledge of the specific details of the Applicant’s aggravated armed robbery, Mr Mustaf Jama said the Applicant had mentioned the offence, without too many details other than taking a knife out at a lady and asking her for money:[133]
he told me that whatever happened that time, he told me that he was on drugs so he don’t even know what he was or nothing. … he didn’t say what he did, because I ask him, you know, I say, “What happened,” you know…he say that he wasn’t even himself, he wasn’t even know what he was, or he wasn’t even know that what he was doing. So he didn’t tell me. That’s what he told me.
[133] Transcript, page 36 at [45] and page 37 at [30].
When asked about his knowledge of the details of the Applicant’s driving offences,

Mr Mustaf Jama said that he did not know the specifics of these offences.[134]
[134] Transcript, page 37 at [10].
Ms Hasda Jama (Applicant’s sister)
In her statutory declarations[135] and earlier letter,[136] Ms Jama gave evidence that the Applicant has always helped the family financially, including hers and their parents’ household bills and her younger brother’s university fees.[137] Ms Jama explained that the Applicant had paid for approximately half of her university course.[138]
[135] A4a and A5.
[136] R1, G15, page 79.
[137] R1, G15, page 79 and A4a at [6]. See also transcript, page 52 at [15]–[20].
[138] A5 at [2].

At the hearing, Ms Graziotti submitted that the Applicant:[197]
was quite involved in the lives of his nieces and nephews. We do accept that most of those children have two parental figures, and that some of the evidence that’s been provided about those relationships is somewhat vague at this stage. However, there is sufficient evidence to find that there is [sic] a number of minor children in Australia who will be affected by the applicant’s – who have already been affected by his imprisonment and incarceration and visa cancellation, and will be somewhat adversely affected if he is unable to remain [in] or even visit Australia.
[197] Transcript, page 8 at [20]–[25].
The Respondent’s submissions regarding the best interests of minor children in Australia who would be affected by a decision not to revoke the Cancellation Decision are:[198]
(a)The Applicant does not claim to have any minor children in Australia affected by the decision. While he has declared that he has “more than 20 nieces and nephews,”[199] there is no evidence in respect of their ages, whereabouts of the relationship that he has with them. Accordingly, the Minister contends that there is insufficient evidence to support a finding that it would be in their best interests for the visa cancellation to be revoked.
(b)This is a case where the evidence is such that the only determination which can be made in obedience to Direction No. 79 is that cancellation is neutral so far as the best interests of any minor children are concerned. Sometimes the best decision “about” whether cancellation is, or is not, in the best interests of the child may be that it is neither.[200]
[198] R3 at [44] and [45].
[199] Referring to A2b at [18], since revised to 15 nephews and nieces in A3 at [14].
[200] Citing Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203, 222 [67].
At the hearing, Mr Burgess submitted further:[201]
The other primary consideration which the applicant says is in his favour is the best interests of minor children. This is a case where that consideration should be given little weight, because these children aren't the applicant's children. He doesn't take a traditional parental role in their lives, such that the effect on them would be significantly less than comparable cases where a person may have their own minor children that they would be leaving if they were removed from the country. On top of that this is a matter where the applicant would be removed to New Zealand. So there is still the opportunity for those children to maintain meaningful contact and visit the applicant should he be removed.
[201] Transcript, page 10 at [10]–[20].
The Tribunal accepts that the 15 minor children that the Applicant has identified as his nephews and nieces may experience disappointment should he be removed from Australia. The Tribunal also accepts that the Applicant’s intentions are to be a positive role model for these children in the future. However, the Applicant is not a parental figure to these minor children. Additionally, the children can remain in contact with the Applicant via telephone or other electronic means should the Applicant be removed from Australia. The Tribunal does not have sufficient evidence before it regarding the wishes of these children. At its highest, the available evidence indicates that the parents of a number of these minor children believe the children would be disappointed if the Applicant returned to New Zealand and that the children would miss the involvement that the Applicant had with them.
However, the Tribunal must consider the available evidence and submissions within the framework of the relevant principles of Direction No. 79. Considering the matters and factors set out in paragraphs 147 and 148 above, the Tribunal finds that, the only conclusion reasonably available to it is that the best interests of the Applicant’s 15 nephews and nieces do not weigh either for or against the revocation of the Cancellation Decision.
Third primary consideration: Expectations of the Australian community (paragraph 13.3 of Direction No. 79)
Paragraph 13.3(1) of Direction No. 79 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In this context, the Tribunal is guided by Senior Member Evans-Bonner in QJYD at [187] to [192]:
187.The Tribunal is guided by the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 374 ALR 601 (FYBR (FC)). The plurality generally agreed with the characterisation of the community expectations primary consideration by Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), where her Honour stated:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. 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 been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is 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 member, [sic] 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 (see Uelese [2016] FCA 348; 248 FCR 296 at [64]–[66]).
(Emphasis added.)
188.Although FYBR (FC) concerned a refusal to grant a visa under the previous Direction No 65, it is equally applicable to the current Direction No 79, as there were no changes to the wording of paragraph 11.3 (which concerns visa refusal) when the Direction was updated. Additionally, paragraph 13.3 (which concerns whether it is appropriate not to revoke a mandatory visa cancellation) is substantially similar in its expression of community expectations.
189.FYBR (FC) confirmed that the community expectations primary consideration operates as a kind of deeming provision (see Charlesworth J at 617 [61] and Stewart J at 622 [89]). That is, paragraphs 11.3 and 13.3 contain a statement of the government’s views as to the expectations of the community. The decision-maker (in this case the Tribunal) must have due regard to those views. As noted by Charlesworth J at 618 [67], “[i]t is not for the decision-maker to make his or her own assessment of the community expectations…”
and further, as noted by Stewart J at 622 [91], “‘community expectations’ as expressed normatively are what the Government says they are, even though in actual fact if they were ascertainable community expectations might be quite different”.
190.Even though the community expectations primary consideration operates as a kind of deeming provision, it does not determine the outcome of the overall decision. As stated by Stewart J, at 622 [91] “‘community expectations’ as expressed by the Government do not speak to the outcome in any particular case”. This is because community expectations comprise one primary consideration which must be weighed against the remaining primary and other considerations in the exercise of discretion under the Direction. Thus, as Charlesworth J stated at 620-1 [79], “[i]n an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be”. Although in most cases community expectations will favour non-revocation of a cancellation decision, the provision does not dictate an inflexible conclusion (Charlesworth J at 620 [75] and Stewart J at 623 [97]) and it is up to the decision-maker to determine the weight to be applied to this consideration (Charlesworth J at 620 [76]-[77] and Stewart J at 624 [102]).
191.The community expectations primary consideration was summarised in straight forward terms by Stewart J as follows (at 624 [101]):
… community expectations are simply, and informally, expressed as follows: ‘If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.’
192.Having regard to the judgments of Stewart and Charlesworth JJ in FYBR (FC), the Tribunal must give effect to the norm stipulated in paragraph 13.3 of Direction No 79 (that the Australian community expects non-citizens to obey Australian laws whilst in Australia), which will, in most cases, weigh in favour of refusing to revoke a cancellation decision.
The parties agree that given the Full Court’s decision in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR (FC)), the expectations of the Australian community must weigh against revocation,[202] however they disagree as to the degree of weight that ought to be applied.
[202] A1 at [78], R3 at [49].
As to weight, the Applicant contends that this consideration should be given little weight considering the lack of previous criminal history and low risk of reoffending.[203]
[203] A1 at [78]. The Tribunal’s findings regarding the Applicant’s risk of reoffending are set out at [80] to [145] above.
The Respondent submitted, however, that as to weight, the seriousness of the aggravated armed robbery offence is something that weighs substantially against the cancellation being revoked.[204]
[204] Transcript, page 10 at [20]–[25].
The Tribunal is guided by the principle in paragraph 6.3(2) of Direction No. 79 which states that “[t]he 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”. Paragraph 6.3(3) of Direction No. 79, in summary, provides that non-citizens who have committed serious crimes, including crimes of a violent or sexual nature, should generally expect to be denied the privilege of staying in Australia. The Applicant has committed a violent crime against a vulnerable woman. There is no dispute that his offending is very serious and it is extremely fortunate that the victim was not injured or killed during this offending. Indeed, the sentencing judge remarked that had the victim panicked there was the risk of a penetrating wound. The construction of paragraph 13.3 of Direction No. 79 as confirmed in FYBR (FC), together with these guiding principles, supports the conclusion that the Australian community would expect the visa to remain cancelled, and consequently, that the Cancellation Decision should not be revoked.
The weight to be given to this consideration will be addressed at the conclusion of these reasons for decision as part of the overall weighing exercise.
Other considerations (paragraph 14 of Direction No. 79)
As noted above, paragraph 14 of Direction No. 79. provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
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.
International non-refoulement obligations (paragraph 14.1 of Direction No. 79)
The Tribunal is required to consider whether Australia’s international non-refoulement obligations (paragraph 14.1 of Direction No. 79) arise on any of the submissions, materials or evidence before the Tribunal.
In the Applicant’s circumstances, Australia’s non-refoulement obligations are not engaged and therefore this consideration is not relevant.
Strength, nature and duration of ties (paragraph 14.2 of Direction No. 79)
Paragraph 14.2(1) of Direction No. 79 provides that the Tribunal is to consider:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of

non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Relevantly, paragraph 6.3(5) of the principles section of Direction No. 79 states:
(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. However, Australia may afford a higher level of tolerance of 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.
At the hearing, the Applicant gave evidence regarding who would be affected by a decision to keep his visa cancelled, and to his ties and community contributions, as follows:[205]
[205] Transcript, page 16 at [10]–[45] and page 17 at [5]–[20].
Mostly it would be me and secondly it would be my family, all my, like, little nephew and nieces which I won't see them grow up, and my siblings as well, I'm really close with them. It will be really hard to see your family every day being like in a different country and it would be very hard for me – to come visit me since they're a big family. It would be really difficult for me to go back to New Zealand in this situation since I don't know nobody in New Zealand. I don't have any family members or any friends I'll be afraid I'll be lonely. It would be tough for me to start all over in New Zealand. Don't have a job waiting for me or nothing. No house, nowhere to stay.
…
My parents would traumatised I believe, especially my mum. I have a really close bond with my mum and also my dad. Not seeing their son would be very hard for them as well for me. Yes, my mum will be, like, really, really – she'd be really depressed I guess if I leave the country.
…
Since I've been here I was the main provider for [my parents], paying all the bills. Since I've been here outside paying day-to-day stuff like that. Yes, I helped them most of the time I was there actually.
…
my mum, she can't drive, and both my parents don't speak good English so I used to take them to all the appointments if they need, I drive my mum whenever she needs a ride. Stuff like that is very important for them.
I had to pay half of [Applicant’s younger sister Hasda’s] Uni fee while she was studying because she couldn't work a lot of hours due to her studies, and I was eligible to give her some money that would help her finish her study which I did.
…
I was involved in the Somali community. I was involved with them for quite some time now organising a lot of events, help the youth, organise soccer tournaments, give them advice, the younger youth about how to get a job stuff like that for a couple of years now until my arrest I was a member of the Somali community.
…
Since I've been in Australia I've been a working person, paid all my tax.
[If the Applicant were to remain in Australia, his] main goal would be first getting a job, moving back with my family, try and live – law abiding citizen. Maybe get married one day, have a family. I have a dream of buying a house in Australia if that works out. I have a lot of goals actually if I stay in Australia.
In relation to the strength, nature and duration of the Applicant’s ties to Australia, the Applicant submitted that:[206]
(a)He has lived in Australia full-time since he was 20 years old, having first arrived as a 17-year-old child. Up until his incarceration he contributed positively to the Australian community through consistent employment[207] and supporting his family practically and financially, particularly his parents, his sister Hasda and his brother Ibrahim. The Applicant has not committed any other offences in any other country.
(b)He was also involved with the Somali and Muslim communities in Perth, including playing soccer and organising tournaments, attending community gatherings and volunteering with the Furqan Islamic Association of WA.[208]
(c)His entire network of friends and family live in Australia. He has no family living in New Zealand who could support him, and most of his high school friends live permanently in Australia. Due to COVID-19 travel restrictions, his opportunities to see his family through them visiting New Zealand are extremely limited.[209]
(d)His younger sister Hasda,[210] older sister Farhiya[211] and father[212] all state that the Applicant is very helpful to the family emotionally and financially and that his offending and jail term have caused his parents stress and illness.[213]
(e)His parents are not permanent residents, nor are they “protected” New Zealand citizens. This means they are ineligible for most Centrelink and welfare payments and rely entirely on their children for financial support.[214]
(f)The fact that the Applicant’s family all lived within a one-minute walk from each other perhaps illustrates the closeness of the family connection.[215]
(g)The positive contributions he has made to the Australian community and the financial, practical and severe emotional effect on the Applicant’s family should he be unable to remain in Australia should be given strong weight in favour of revoking his visa cancellation.
[206] A1, pages 12 to 15.
[207] The Tribunal notes the Applicant’s employment history is tabled at A1 at [81].
[208] The Tribunal notes the letters of support provided by Mr Abdi Artan in this regard (A4h and R1, G18).
[209] A1 at [97].
[210] See R1, G15.
[211] See R1, G17.
[212] See R1, G14.
[213] As noted at n [143] above, the Tribunal has not been presented any evidence regarding the Applicant’s parents’ claimed health issues. Similarly, the Tribunal has not been presented any evidence regarding the Applicant’s claimed financial assistance to his family.
[214] A1 at [90].
[215] Transcript, page 70.
When asked by the Tribunal as to who was helping the Applicant’s parents during the periods the Applicant was in prison (and now in detention), the Applicant said:[216]
At that moment my two little siblings were living with them, and I believe Hasda was helping them when I was locked up for (indistinct) because she needed to finish her studies and she was working, even though it was a big struggle for her to obtain everything that was going through the house, the rent and the bills. Also my little brother was helping them for their appointments for being an interpreter for them…
I believe if my little brother wasn't there they would go through some other family friends that was going to help them with their appointments and if they need to travel they have to call up the Somali communities just to give them a bit of a hand, which was really hard for them to call someone else at the time they needed to go somewhere….
My cousin, Mustafa, he was the one that used to bring my mum and my dad as well to come visiting [the Applicant in prison]. He was the main driver for them.
(Emphasis added.)
[216] Transcript, page 17 at [45] and page 18 at [5]–[15].

Regarding the strength, nature and duration of the Applicant’s ties to Australia, the Respondent submitted that:
(a)In the context of the Applicant’s parents’ claims that the Applicant was their main support person and that they relied on him for transport and income, the Applicant has now been in prison or immigration detention for over a year and there is no evidence that his parents have been unable to subsist during this time. Further, it appears from the Applicant’s prison visitor history that they were able to organise transport to him whilst he was incarcerated.[217] There is also no evidence that the Applicant’s other family members would be unable or unwilling to provide support to his parents, particularly the Applicant’s brother who continues to reside with them.
(b)The Applicant’s sister Hasda, attests to the Applicant being “the most amazing human” she knows and having “one of the kindest heart’s and soul”.[218] Hasda claims that the Applicant was always a peaceful man and never engaged in other illegal activities such as theft or illicit drugs. The use of these examples is curious given the Applicant’s charge was one of robbery, which he attributed to the use of drugs, and calls into question his sister’s knowledge of his conviction.[219]
(c)There is otherwise little independent evidence of the strength of the relationship between the Applicant and these family members and no independent evidence of the strength of the relationship between the Applicant and the remainder of his family members.[220]
(d)Although the Tribunal may find that this consideration weighs in the Applicant’s favour, it does not outweigh the other primary considerations weighing heavily in favour of non-revocation.[221]
[217] See R1, G13.
[218] R1, G15.
[219] R3 at [52].
[220] R3 at [53].
[221] R3 at [54].
At the hearing, Mr Burgess added:[222]
The other considerations which are really – may carry some weight are the strength, nature and duration of ties. It's accepted that the applicant has been in the community for some time. He has worked in the Australian community, and it's not the case that as my friend has said that the applicant has continuously offended throughout that time. So it's accepted that that does weigh in favour of the cancellation being revoked, but again it's another [sic] consideration. Generally it will be given less weight than the primary considerations, and in this case that's a submission that we make as well.
[222] Transcript, page 10 at [25]–[30].
The Applicant is 30 years old and has lived in Australia since he was 17 years old. The Tribunal accepts that the Applicant regards Australia as his home. The Applicant was

26 years old when he committed the aggravated armed robbery offence. Therefore, it is not the case that the Applicant started offending soon after his arrival, but it is also not the case that the Applicant arrived as a young child.
The Tribunal accepts the Applicant has made positive contributions through his employment during certain periods. There is no evidence of the specific contributions the Applicant claims to have made in the community, however the Tribunal accepts that the letters of support from friends, family and community representatives are indicative of his ties to the community.[223]
[223] See list at [20] above, G14 to 18 (inclusive) and G20.
The Tribunal accepts that the Applicant does not have any friends or social supports in New Zealand. The Tribunal also accepts that the Applicant’s family and friends would suffer emotional hardship if he were to be removed from Australia and would not be in a position to visit or relocate to New Zealand to be with him. However, the evidence before the Tribunal is that the Applicant’s family has been managing practically and financially since the Applicant has been in prison and detention. There is no evidence to indicate this would not continue to be the case should the Applicant be removed.
In summary, the Tribunal finds that the Applicant has close ties to the Australian community. He has lived in Australia since he was 17 years old, and his family members reside in Australia, including his numerous siblings, nieces and nephews. Whilst the Applicant did not start offending shortly after arriving in Australia and has contributed to the Australian community to some degree, the Tribunal considers these matters are outweighed by the serious nature of his offending and the risk that he will reoffend. The Tribunal also finds that the Applicant’s family will suffer emotional detriment if he is returned to New Zealand, but would be able to continue to manage financially and practically. Overall, considering the serious nature of the Applicant’s offending and the risk that he will reoffend, this other consideration of the strength, nature and duration of the Applicant’s ties to Australia cannot outweigh these matters and therefore, the Tribunal finds it only weighs slightly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests (paragraph 14.3 of Direction No. 79)
Paragraph 14.3(1) of Direction No. 79 provides that the Tribunal is to consider the:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before the Tribunal.
Impact on victims (paragraph 14.4 of Direction No. 79)
Paragraph 14.4(1) of Direction No. 79 provides that the Tribunal is to consider the:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
This consideration does not arise on the material before the Tribunal.
Extent of impediments if removed (paragraph 14.5 of Direction No. 79)
Paragraph 14.5(1) of Direction No. 79 provides that the Tribunal is to consider:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant gave the following evidence and submissions regarding the impact of removal:[224]
(a)His parents and siblings are stressed by the prospect of his removal and would find it difficult to cope emotionally, financially and practically. This would affect him for the rest of his life.[225]
(b)Most of his family and his high school friends now live in Australia. He has no support in New Zealand and fears he will be unable to support himself financially and emotionally.[226]
(c)His parents have health issues and are aging and have language barriers, so need him or his siblings to help them. His siblings who live with his parents cannot always help as they attend university.
(d)He suffers from mental health issues and has concerns for his mental health if returned to New Zealand.[227]
(e)Given the length of time he has spent in Australia, his age when he arrived and his age now, and the fact that he has not returned to New Zealand since November 2011 (meaning he has a total lack of employment, family and social networks there) he will have some difficulties re-establishing himself in New Zealand and may be at higher risk of mental illness.[228]
(f)Therefore, this factor should weigh in favour or revocation of the Cancellation Decision.[229]
[224] A2(b) at [42] to [46].
[225] A1 at [97].
[226] See also A1 at [94] and [95].
[227] A1 at [96] at [98].
[228] A1 at [99].
[229] A1 at [100].
The Respondent’s submissions regarding impact of removal were:[230]
[230] R3 at [56] to [60].
(a)The material before the Tribunal does not support a finding that there are significant impediments the Applicant may face in establishing himself and maintaining basic living standards as contemplated by this other consideration.
(b)
While there is no evidence of the Applicant having been diagnosed with his claimed mental health conditions, nor any evidence of how this might impact his ability to

re-establish himself in New Zealand, as a citizen of New Zealand, the Applicant will have the same access to social, medical and economic support as other citizens. As a broad proposition, in the absence of any contrary evidence, the Tribunal is entitled to take into account that the Applicant would have access to government benefits similar to those available to him in Australia.[231]
(c)The Applicant spent some eight years in New Zealand prior to his arrival in Australia and has returned on two occasions to complete year 13 and commence tertiary studies.[232] Accordingly, there would be no language or cultural barriers to overcome. More particularly, in circumstances where the returning country is New Zealand, the cultural, linguistic and political circumstances are matters of common knowledge.
(d)Further, there is nothing to suggest that the Applicant would be unable to maintain contact with his family, and receive support from them, by electronic means.
(e)Accordingly, there are minimal impediments, if any, to the Applicant being removed to New Zealand.
[231] Citing Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296.
[232] A1 at [4] and [8].
Having considered the available evidence and the parties’ submissions, the Tribunal considers that the Applicant would likely face emotional hardship from being separated from his family and from being returned to a country where his family and friends no longer reside. The Tribunal accepts that the Applicant would face difficulty in re-establishing himself in New Zealand without contacts to assist him to find housing and employment.
However, the Tribunal is of the view that New Zealand is broadly culturally and linguistically comparable to Australia and has comparable standards of social, medical and economic support. The Applicant would be entitled to the same level of services as other New Zealand citizens in similar circumstances.
Overall, the Tribunal finds that the Applicant may encounter some difficulty and hardship in establishing himself and maintaining a basic standard of living if he were to return to New Zealand, but that these difficulties are not insurmountable. As such, this consideration weighs moderately in favour of revocation of the Cancellation Decision.
Impact of COVID-19 pandemic
Paragraph 14 of Direction No. 19 is clear that the considerations that can be taken into account in that paragraph are not limited to those listed.
As noted by Senior Member Evans-Bonner in QJYD (at [225] to [226]), if the Tribunal affirms the Reviewable Decision, the Applicant must be removed to New Zealand as soon as is reasonably practicable (under s 198 of the Migration Act). If restrictions on international travel due to the COVID-19 pandemic continue, it may not be possible for the Applicant to be immediately removed. It is therefore possible that if the Tribunal affirms the Reviewable Decision, the Applicant may face an additional period of detention before it will be reasonably practicable to remove him to New Zealand. However, as noted by Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, [299] “[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus … subsides”.
Overall, the Tribunal finds the impact of the COVID-19 pandemic to weigh only minimally in favour of the revocation of the Cancellation Decision
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No. 79.
In relation to the first primary consideration, the Tribunal has found that:
(a)the nature and seriousness of the Applicant’s offending conduct weighs very strongly against the revocation of the Cancellation Decision (paragraphs 13.1 and 13.1.1 of Direction No. 79); and
(b)the risk to the Australian community should the Applicant commit further offences weighs very strongly against the revocation of the Cancellation Decision (paragraphs 13.1 and 13.1.2 of Direction No. 79).
Overall, with respect to the first primary consideration, the Tribunal has concluded that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of
Direction No. 79), weighs very strongly against the revocation of the Cancellation Decision.
With respect to the second primary consideration, being the best interests of minor children (paragraph 13.2 of Direction No. 79), the Tribunal has found that the best interests of the Applicant’s 15 minor nieces and nephews do not weigh either for or against the revocation of the Cancellation Decision.
The Tribunal has found that the third primary consideration, being the expectations of the Australian community (paragraph 13.3 of Direction No. 79) would be that the Cancellation Decision should not be revoked. The Tribunal must now determine the weight to be applied to this consideration.
In determining the weight to be afforded to the third primary consideration, the Tribunal notes that the first primary consideration, regarding the protection of the Australian community, weighed very strongly against the Applicant. This consideration was comprised of the nature and seriousness of the Applicant’s offences, which weighed very strongly against the revocation of the Cancellation Decision. It was also comprised of the risk of the Applicant reoffending, with the Tribunal finding that the Applicant had a likelihood of reoffending that was higher than the “low” range claimed. Given the nature of the harm caused by the Applicant’s offending, this nevertheless weighed very strongly against the revocation of the Cancellation Decision. In reaching this conclusion the Tribunal considered the serious nature of the harm that can be caused to the community from violent offences against vulnerable members of the community and driving offences such as those committed by the Applicant. Overall, the Tribunal found that the first primary consideration weighed very strongly against the revocation of the Cancellation Decision.
Further, in determining the weight to be afforded to the third primary consideration the Tribunal notes that the second primary consideration of the best interests of minor children (paragraph 13.2 of Direction No. 79) weighed neither for nor against the revocation of the Cancellation Decision.
Additionally, in determining the weight to be applied to the third primary consideration, the Tribunal must balance the first and second primary considerations with the considerations that it considered weighed in the Applicant’s favour. The Tribunal found that the “other” consideration of the strength, nature and duration of the Applicant’s ties to Australia weighed slightly in favour of the revocation of the Cancellation Decision (paragraph 14.2(1) of Direction No. 79). The Tribunal also found that the “other” consideration of the impediments the Applicant would face if returned to New Zealand weighed moderately in favour of the revocation of the Cancellation Decision (paragraph 14.5(1) of Direction No. 79).
The Tribunal also considered the impact of the COVID-19 pandemic, including the amount of time the Applicant may potentially be detained for without having in person visits from his family until he can be returned to New Zealand, which was given minimal weight in favour of revoking the Cancellation Decision.
After balancing the relevant primary and other considerations, the Tribunal concludes that the expectations of the Australian community would nevertheless weigh very strongly against the revocation of the Cancellation Decision. As set out in paragraph 13.3(1) of Direction No 79, the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has, in the Tribunal’s view shown a consistent disregard for the law by continuing to use drugs and has been undeterred by the known consequences of doing so. The Tribunal is of the opinion that, even when balanced against the other considerations that weighed in favour of the Applicant (being the strength, nature and duration of the Applicant’s ties to Australia, the impediments the Applicant would face if returned to New Zealand and the impact of the COVID-19 pandemic), the strong view of the Australian community would be that the Applicant should not hold the visa.
The Tribunal finds that the primary consideration of the protection of the Australian community and the expectations of the Australian community outweigh the considerations which weigh in favour of revocation of the cancellation, being the other considerations of the strength, nature and duration of the Applicant’s ties to Australia, the extent of impediments if removed and the impact of the COVID-19 pandemic. The Tribunal reiterates, for completeness, that the primary consideration of the best interests of minor children was found to not weigh either for or against the revocation of the cancellation decision.
DECISION
The Tribunal affirms the Reviewable Decision of a delegate of the Respondent dated
12 November 2020 not to revoke the mandatory cancellation of the visa.

I certify that the preceding 201 (two hundred and one) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

............[Sgd]............................................................
Associate
Dated: 5 February 2021

Date of hearing: 18 January 2021

Representative for the Applicant: Ms A Graziotti, Estrin Saul Lawyers

Representative for the Respondent: Mr A Burgess, Sparke Helmore Lawyers

After his trial on 7 and 8 August 2019, the Applicant was taken into custody to await sentencing. On

4 November 2020, the Applicant was granted parole. On 19 November 2020, the Applicant was released from prison. The Applicant is currently in detention. See A1 at [19] to [22].

There is no documented evidence before the Tribunal regarding the Applicant’s mother’s claimed health issues or the Applicant’s family’s claimed other health and financial hardships. This was confirmed by

Ms Graziotti at hearing. See transcript at page 63.

R2, SG3, page 125. The Applicant accepts that he did not take his medication at the required time on

12 April 2020, however, he did not receive a conviction for this breach (A3 at [3] and [4]).

[2021] AATA 134

5 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Date of hearing:	18 January 2021
Representative for the Applicant:	Ms A Graziotti, Estrin Saul Lawyers
Representative for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers