James and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2390

James and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2390 (29 July 2022)
Division:GENERAL DIVISION
File Number: 2022/3675
Re:Brendon Michael James
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:29 July 2022
Place:Perth

The decision of the delegate of the respondent dated 6 May 2022 not to revoke the cancellation of the applicant's Class TY Subclass 444 Special Category (temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act) is set aside and substituted with the decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act s 501CA(4) – decision of a delegate of the Minister not to revoke the mandatory cancellation of the applicant’s visa – whether there is “another reason” to revoke the cancellation of the applicant’s visa – nine year gap in episodes of offending – applicant a 46-year-old man who arrived in Australia as a six-year-old child – extent of impediments if removed where applicant already returned to New Zealand – strong links to the Australian community – there is another reason to revoke the mandatory cancellation of the applicant’s visa – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(7)(d), 501(7A), 501CA, 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G
CASES
CZCV and Minister for Home Affairs [2019] AATA 91
DMZZ and Minister for Immigration and Border Protection [2017] AATA 1217
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
MQKW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4667
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2227
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Suleiman v Minster for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
Thodey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4809
SECONDARY MATERIALS
Department of Health, National Drug Strategy 2017–2026 (18 September 2017)
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 s 501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) paras 5.1, 5.1(3), 5.2, 5.2(5), 6, 7, 8, 8.1, 8.1.1, 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.3(4)(a), 8.3(4)(b), 8.3(4)(d), 8.3(4)(e), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 9, 9.1, 9.2, 9.3, 9.4, 9. 9.1, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4, 9.4.1, 9.4.1(2)(a)(ii), 9.4.2
REASONS FOR DECISION
Deputy President Boyle
29 July 2022
THE APPLICATION

The applicant seeks review of the decision of a delegate of the respondent (Minister) dated 6 May 2022[1] not to revoke the cancellation of the applicant's Class TY Subclass 444 Special Category (temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
[1] R1/10.
The applicant’s visa was cancelled under s 501(3A) of the Act on 18 October 2021 on the basis that he did not pass the character test by reason of his substantial criminal record, and he was serving a full-time term of imprisonment for an offence against a law of a State.
The application for review was made on 8 May 2022 pursuant to s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
THE ISSUE
The issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A) of the Act. This will require determination of:
(a)whether the applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the applicant’s visa should be revoked.
THE HEARING AND THE EVIDENCE
The application was heard on 11 July 2022. The applicant represented himself and the Minister was represented by Ms B Griffin of the Australian Government Solicitor. The following witnesses gave evidence at the hearing:
(a)the applicant;
(b)Michael David James, the applicant’s father;
(c)Deidre Alice James, the applicant’s mother; and
(d)the applicant’s sister.
The following documents were admitted into evidence:
(a)Email from Michael David James dated 24 June 2022 (A1);
(b)The applicant’s movement records in and out of New Zealand filed 16 June 2022 (A2);
(c)Email attaching New Zealand travel documents filed 27 June 2022 (A3);
(d)Email from the applicant to the Tribunal dated 1 July 2022 attaching a video (A4);
(e)Statement of Deidre Alice James dated 4 July 2022 (A5);
(f)Statement of the applicant’s sister dated 4 July 2022 (A6);
(g)Section 501G documents filed 17 May 2022 (R1); and
(h)Supplementary G documents filed 22 June 2022 (R2).
BACKGROUND
The following facts are largely taken from the Minister’s SFIC and are not in dispute.
The applicant is a 41-year-old citizen of New Zealand who has resided in Australia since his arrival in 1986 at the age of six years.
On 19 March 2012, the applicant received a conditional suspended sentence of three years’ imprisonment for armed robbery.[2]
[2] R1/31.
On 14 May 2012, the applicant received notification from the Minister’s Department that his visa was under consideration for cancellation on character grounds. On 3 August 2012, the applicant was advised that his visa would not be cancelled on that occasion and he received the following warning from the Department:
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.[3]
(Original emphasis.)
[3] R1/142.
After the conviction for armed robbery, the applicant was not convicted of any offence until 24 March 2021 when he was convicted in the Perth Magistrates Court on two counts of possessed drug paraphernalia in or on which there was a prohibited drug or plant and one count of possessed prohibited weapon. The applicant received fines for these convictions.[4]
[4] R1/31.
On 19 August 2021 the applicant was convicted in the District Court of Western Australia on two counts of possession of a prohibited drug with intent to sell or supply, one count of possession of stolen or unlawfully obtained property and one count of selling a prohibited drug, namely methylamphetamine for which the applicant received terms of imprisonment for 10 months, 14 months, four months and six months respectively, all to be served concurrently.
The applicant’s full criminal record is set out in the annexure to these reasons for decision.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) ...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
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)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
...
(Original emphasis.)
Section 501(7A) of the Act provides:
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
Section 501CA of the Act relevantly 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.
...
(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.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
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.
Section 499(2A) of the Act provides that, “[a] person or body must comply with a direction under subsection (1).”
On 8 March 2021 the relevant minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[5] The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”.[6] (Direction 79).
[5] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
[6] 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 s 501CA (20 December 2018).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
(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 fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. These principles are stated to be as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the cancellation of the visa should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)    international non-refoulement obligations;
b)    extent of impediments if removed;
c)    impact on victims;
d)    links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests.
CONSIDERATION
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[7] The character test is defined in s 501(6) of the Act (see [15] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [16] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. Section 501(7)(d) of the Act provides that a person will have a substantial criminal record if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”. The applicant has been sentenced to terms of imprisonment totalling more than 12 months and he therefore has a substantial criminal record. Accordingly, he does not pass the character test.
[7] [2009] AATA 47; (2009) 106 ALD 66.
As the applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue, therefore, is whether the power under s 501CA(4)(b)(ii) of the Act should be exercised on the basis that there is another reason why the decision under s 501(3A) of the Act should be revoked (see [18] above).
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that, when decision-makers are considering the protection of the Australian community, they:
(1) ... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(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 (para 8.1.1)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)    with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)    the cumulative effect of repeated offending;
f)     whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

In his statement of facts, issues and contentions filed 1 June 2022 (Minister’s SFIC), the Minister made the following submissions[8] in relation to the seriousness of the applicant’s offending:
(a)The applicant’s offending should be regarded as serious.
(b)Specifically, the applicant has received numerous convictions for drug related offences as well as for armed robbery, all of which are “self-evidently serious”.[9]
(c)The armed robbery offence, although committed some time ago, is to be considered very serious. Although it is the only offence involving violence, it was planned and committed against a vulnerable person to obtain money to fund the applicant’s drug habit, which underlies all of the applicant’s offending.
(d)In relation to the 2021 convictions, the District Court noted that the amounts involved were “not inconsequential”, the purity of the drugs was very high, and that the applicant’s offending reflected a “persistent course of conduct”.
(e)A number of Tribunal decisions have found that offences involving the sale or supply of methylamphetamine are serious offences.[10]
(f)It is also significant that the applicant offended after having received a formal warning.
[8] Minister’s SFIC paras 22–30.
[9] Minister’s SFIC para 22.
[10] Citing DMZZ and Minister for Immigration and Border Protection [2017] AATA 1217 at [50]; Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2227 at [40]–[43]; MQKW and Minister for Immigration, Citizenship, Migrant Services and Multicultural [2021] AATA 4667 at [75]–[77].
The particulars of the armed robbery of which the applicant was convicted in 2011 are set out by Heenan J in his judgment[11] as follows:
You pleaded guilty to a charge that on 29 August 2011, you stole from [DJ] with threats of violence a sum of money, the property of [DJ], and that at the time you were aimed with a dangerous weapon, namely, an electronic stun gun. This is the offence of aggravated armed robbery under s 392(1) of the Criminal Code (WA). That exposes you to a potential sentence of imprisonment for life.
…
There was a young man of Chinese nationality who was visiting Perth, working as a touring transsexual sex worker. He had advertised in the paper offering his services for sale. He was staying at the Mercure Hotel. On Monday, 29 August 2011, you phoned this person and organised a time to meet him at the hotel, located at Irwin Street, under the guise of obtaining his sexual services. You went to the hotel in the early hours of the morning, just after 1.00 am and, after finding his hotel room, you knocked and were allowed to enter the room. On entering the room, the young man offered you a drink and asked about the payment of money. At that point you removed an electronic stun gun from your shorts and held it to this man’s neck, saying, ‘This is a taser and it's real. Now, I want all your money’. Fearing for his safety, the person handed over $640 in cash. You put the money in your pocket and left the room and then the hotel.
Inquiries were conducted by the police and on Tuesday, 27 September; that is almost a month later, you were identified and attended the office of Perth City detectives, where a video record of interview took place and you made a series of admissions. None of the money was recovered.[12]
[11] R1/47–54.
[12] R1/49.
In relation to the seriousness of the offence, Heenan J made the following observations:
… I have described the circumstances of the commission of the offence and the vulnerability of the victim. He seems to be a person who plies a very dangerous trade. As for aggravating factors and mitigating factors, I tum first to aggravating factors. Those are factors which in the court's opinion increase the culpability of the offender, but it is not suggested in this case that there are any particular aggravating factors.
…
You have pleaded guilty at an early stage and that has been accepted as a mitigating factor and I will give effect to that as I will describe later.
…
In your case you have a relatively short previous record.[13]
[13] R1/50.
In suspending the applicant’s imprisonment sentence, Heenan J observed:
In your case the fact that you have taken steps to address the addiction, that you are attending medical and psychological assessment and that the prospects are that rehabilitation is possible, suggests that this is an occasion, one of the rare occasions, in which the sentence should be suspended.
The applicant does not dispute the facts of the armed robbery as set out in Heenan J’s judgment. The applicant’s evidence at the hearing in relation to the armed robbery was that:
it was nothing more than an opportunity to get money to buy more drugs. I'm still to this day disgusted and ashamed in myself and the fear that I caused that person and the damage, especially now having been through it myself, you know, to a greater extent but that's what it was, there was nothing more to it. I just needed money for drugs. From that I got $600 and, yes, it should've been three years in prison. Yes, just very poor decision making.[14]
[14] Transcript/12.
The particulars of the 2021 offences of possession with intent to sell or supply and possession of a thing capable of being stolen, are set out in the sentencing comments of Wallace DCJ as follows:
So you come before the court today to be sentenced for one count of selling a prohibited drug namely methylamphetamine to another, two counts of being in possession of a prohibited drug, again methylamphetamine with intent to sell or supply it to another, one count of being in possession of a thing capable of being stolen namely money that is reasonably suspected to have been unlawfully obtained.
I have now entered judgments of conviction on the basis of your pleas of guilty…
…
In summary, firstly in relation to count 1 in the evening on 10 January I’ve got 2021, that's correct, so just earlier this year police observed a male pedestrian standing on the road speaking to you through your car window.
You then pulled out from James Street. You were stopped by police. Police conducted a search of your vehicle and you participated in an audio-visual record of interview in which you admitted that you had just sold 1 gram of methylamphetamine to the male person the police had observed standing next to your vehicle.
In relation to count 2 you were asked by police to exit your vehicle. Whilst doing so they observed you throw an object out of the passenger window onto the road. The object was a sock which had inside it a clipseal bag containing an amount of methylamphetamine. It was later analysed and found to be 14.1 grams with a purity of 81 percent. A search of the vehicle also discovered two glass smoking implements, the first was in a centre console and the second concealed within the boot lining. In respect to count 3, police located $570 in the drink holder in the vehicle's centre console.
You participated in an audiovisual record of interview and you admitted you received the money in return for the methylamphetamine you sold to the male person that the police had observed. You participated in an audiovisual record of interview and you made full admissions to selling the one gram of methylamphetamine, possession and ownership of the methylamphetamine, smoking implements and also the Australian currency. You stated that you intended to sell, share and smoke the remainder of the methylamphetamine.
In the morning on 3 March 2021, police detectives executed a search warrant at your home address in West Perth. During the search of your bedside drawer, police located a quantity of a substance they suspected to be methylamphetamine in a clipseal bag and (inaudible) methylamphetamine in a cup. They were later analysed and found to be 6.21 grams of methylamphetamine with a purity of 82 per cent and 2.97 grams of methylamphetamine with a purity of 81 per cent. So the total weight of that methylamphetamine was 9.18 grams. That's count 4 on the indictment.
The police also located $2,000 and two bank cards in your name in the same location as the methylamphetamine and two New Zealand passports were located in the top drawer near where the methylamphetamine was located, two mobile phones were also located on the top of the bedside drawer and you declined to provide access to those mobile phones. You were questioned regarding the items located and only made admissions to the bank cards and the passports being yours. …[15]
[15] R1/37–9.
In commenting on the seriousness of these offences, Wallace DCJ noted:
Two factors of significance when assessing the gravity of drug offending is the quantity of drugs involved and their purity. They are certainly not the chief factors to be taken into account, but they are important, and that's because it's presumed that the greater the quantity of the illicit substance and the higher its percentage of purity, the greater the degree of harm which might be done to the community. Now, whilst unfortunately none of the counts on the indictment reflect the higher end of seriousness for this type of offending that this court sees, in my view, nevertheless, the amounts of methylamphetamine involved in counts 2 and 4 are certainly not inconsequential and reflect on the seriousness of those counts.
In addition, the percentage purity in relation to those counts is very high and that is a factor that reflects on the seriousness (inaudible) in respect to count 2 that reflects on the seriousness is the commerciality. It's not in dispute that you were involved in the sale or supply of methylamphetamine for profit … No doubt you were selling in order to partly fund your own addiction.
…
The other factor that reflects on the seriousness really is the persistent nature of your offending. It really can't be seen as isolated or one-off in nature, rather reflects certainly a persistent course of conduct. In my view, I accept Mr Andrews' submissions to the court that I can sentence you as a low-level user-dealer, and I do so for the purposes of sentencing you today.[16]
[16] R1/39–40.
In assessing the seriousness of the applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90 (see [31] above), I find that:
(a)Paragraph 8.1.1(1)(a) – with the exception of the armed robbery which, because of the use of the taser, necessarily involved at least a threat of violence, the applicant’s offending has not involved any of the conduct identified in this paragraph.
(b)Paragraph 8.1.1(1)(b) – again, with the possible exception of the armed robbery in which the applicant, as Heenan J noted, took advantage of the victim’s vulnerability (see [34] above), the applicant’s conduct was not of the type described in this paragraph.
(c)Paragraph 8.1.1(1)(c) – the three-year term of imprisonment imposed by the court in respect of the armed robbery is clearly a significant sentence reflecting the seriousness of the applicant’s offending. However, the court suspended the imprisonment, it would appear, primarily for the reasons identified by Heenan J in the passage cited at [35] above. The sentences imposed in respect of the 2021 offences were, while not insignificant, at the lower end of the range of penalty and, as Wallace DCJ noted, imposed on the basis of the applicant being a low-level user-dealer (see [38] above).
(d)Paragraph 8.1.1(1)(d) – while the applicant has been convicted of 11 offences, his offending behaviour has been limited to two distinct periods, firstly in 2011 (conviction in 2012) and then in 2021. In other words, there was a considerable gap of some nine years in which the applicant was not convicted of any offences. As the Minister’s counsel pointed out in closing, while the applicant was not convicted in that nine-year period, on his own evidence, he did slip back into use of methylamphetamine for around four months in or around late 2016 and early 2017.[17] It would be fair to say, however, that the most serious of the applicant’s offending was in August 2011 when he committed the armed robbery. Accordingly, I do not find that there is a trend of increasing seriousness.
(e)Paragraph 8.1.1(1)(e) - the only “cumulative effect” of the applicant’s offending is that it seems to be linked to his mental health and his relapse into drug use. It does not, however, indicate a disregard for the law or for other members of the Australian community.
(f)Paragraph 8.1.1(1)(f) – it appears that the applicant failed to disclose his 2012 convictions on his incoming passenger card when he re-entered Australia.[18] The applicant says that that this was an innocent oversight.[19] I accept the applicant’s evidence in this regard.
(g)Paragraph 8.1.1(1)(g) – the applicant received a formal warning in August 2012 (see [10] above).
[17] Transcript/17, 32, 54.
[18] R1/5, para 6 (applicant’s reasons for application to the AAT).
[19] R1/82.
The offences of which the applicant has been convicted are clearly serious offences. Armed robbery and dealing methylamphetamine are serious offences on any measure. The applicant does not dispute that. However, I note that the applicant’s offending has been limited to two relatively short periods (with a relapse into drug use for some four months which did not result in any charges) and that there was a significant gap in the applicant’s offending between those episodes of offending. It is clear that, as noted by both sentencing judges, the applicant’s offending is related to his mental health and lapses into drug use.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
The Tribunal in CZCV and Minister for Home Affairs[20] at [56] summarised the task for the decision-maker as follows:
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, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 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.
[20] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection[21] Moshinsky J stated, 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.
[21] [2016] FCA 1181.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the several Ministerial Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (para 8.1.2(2)(a))
The Minister made no specific submission on this paragraph of Direction 90, however, in making submissions on para 8.1.1, the Minister referred to Deputy President Kendall’s decision in DMZZ wherein (at [50]) Deputy President Kendall commented:
Given the well documented devastation inflicted on the community as a result of the
production, distribution and use of methylamphetamine, this is a most serious crime. This is an insidious drug. It devastates the lives of those who use it and the lives of their families and loved ones. Its systemic harms cannot be underestimated and those who distribute it have much to answer for.[22]
[22] See also Nguyen at [40]–[43] and MQKW at [75]–[77].
The nature of the harm that is caused by offences such as armed robbery and the use of weapons is also serious and self-evident. The applicant himself acknowledged the “damage” that must have been done to his victim (see [36] above). The harm caused by methylamphetamine, in particular dealing methylamphetamine has been the subject of comment in a number of cases and Tribunal decisions.[23] As I did in Thodey at [78], I also refer to the National Drug Strategy 2017–2026,[24] which notes that the Australian community faces both direct and indirect harm from drugs, including mental health trauma, violence or other crimes, engagement with the criminal justice system more broadly, and healthcare and law enforcement costs.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (para 8.1.2(2)(b))
[23] For example, see [74]–[78] of my decision in Thodey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4809.
[24] Department of Health, National Drug Strategy 2017–2026 (18 September 2017).
As noted above, the applicant’s offending has been tied to his drug use. The applicant’s drug use appears to be linked to his mental state which in turn seems to be affected by stressful events in the applicant’s life.
The Minister contends[25] that there are cogent reasons for me to be concerned about the applicant’s risk of re-offending. In particular, the Minister points to the following:
(a)The applicant’s very recent offending. The Minister submits that I should be concerned because “the applicant has re-offended, repeatedly, after a relatively lengthy stint of abstinence and apparent good conduct”. I must admit that I find that submission slightly odd. Firstly, as I have set out above, while it is the case that the applicant committed a number of offences in 2021, they were committed in a very brief window of time. These offences were, in my assessment, a product of the applicant’s relapse into drug use resulting from his inability to deal with a stressful situation. While technically, because there were a number of offences, the commission of the offences in that brief period was “repeat offending”, it formed part of one episode. Secondly, I would have thought that it is a positive factor, not a matter of “significant concern” as the Minister contends, that the applicant had largely stayed law-abiding (with one possible drug-use lapse in 2016-17) between the first episode of his offending in 2011 and his offending in 2021.
(b)The applicant has substance abuse issues. The applicant has relapsed after long periods of abstinence and after treatment.
(c)The applicants relapse into offending follows the same pattern. It follows substance abuse following a breakdown in a relationship.
(d)In 2012 the applicant had engaged enthusiastically in treatment and individual counselling programmes, had significant family support, had engaged in a comprehensive and strictly monitored treatment programme and had been assessed by a psychiatrist as being “very much at the low end of the spectrum in relation to the risk of re-offending”. Similar assurances, intentions and engagement are stated by the applicant in these proceedings. It is also of concern that the applicant committed his recent offences following his commencement of treatment with Fresh Start Clinic and the use of a Naltrexone implant.
(e)The applicant reoffended after a formal warning.
[25] Minister’s SFIC para 33.

While the applicant did not file a statement of facts, issues and contentions, he did make submissions in the “Reasons for application” section of the application lodged with the Tribunal.[26] In those reasons for application, the applicant made the following submissions relative to the likelihood of him re-offending:
(a)The protective factors referred to by Wallace DCJ as being in place in sentencing the applicant, such as family support, a long, challenging and fulfilling employment history giving rise to a clear possibility of future employment and the applicant’s commitment to rehabilitation and medical compliance.
(b)Suspension of the applicant’s sentence in 2012 and the applicant’s completion of the 18-month community correction order.
(c)The nine-year gap in the applicant’s offending, indicative of someone who has made poor decisions in two limited periods rather than a career criminal or habitual offender.
(d)Apart from the short periods of offending, the applicant has led a law-abiding and productive life and has contributed to the Australian community, noting that he arrived in Australia as a six-year-old.
(e)His failure more recently to be engaged in rehabilitation was the result of unavailability of programs in prison and detention and the cost of the private programs (the Whitehaven program cost the applicant $4,200).
(f)The applicant’s endorsement by the head of faculty while working in the assessments department of Hakea prison.
(g)The fact that the Prisoners’ Review Board granted the applicant parole.
[26] R1/4–5.
The applicant expanded on why he was not an unacceptable risk of reoffending at the hearing. It was put to him by the Minister’s counsel that he had offended notwithstanding a warning of the consequences in 2012. Asked what is different now, his answer was:
[T]he repercussions of my actions have never been to the point where they are now, so the likelihood of me making those same choices in the future is reduced. Has it gone away completely? No, I'm not going to say that. What I'm trying to illustrate to the court to the hearing is that I have faced far greater penalties this time around, and I'm not trying to say that I was flippant about the last warning and, you know, being remanded for 41 days the first time. But the reality is this time around it's cost me a lot more. It's cost me a lot more. You know, before I would - you know, I would sit down, let's say I could sit down and objectively look at it, and go, right, I'm going to use drugs, okay. But what happened in 2011 and 2012? You know, I went to jail for 41 days and I got an 18 month community corrections order and I got warned that I might not be able to stay in the country. Okay, let's fast forward to 2020, what happened then? You were abducted, you were bashed, you went to prison for nine months. You went to the most inhumane place possibly on the face of this earth, that being immigration detention. You were removed from the country. You have lost the opportunity - potentially lost the opportunity to see your niece and nephew grow up.[27]
[27] Transcript/34–5.
The applicant returned to this theme in his closing submissions:
[T]he trauma that I've had to face in the last 15 months, or however long it's been, that I'm trying to bring to the attention, that's what's going to keep me moving forward in the right direction. That's what is steering me away from making these wrong choices and these bad decisions. I can't honestly sit here and say it will never happen again, because I have dealt with the effects of drug dependency in my life until today and I will be a drug addict for the rest of my life. It's just whether or not I'm in active recovery or whether or not I'm using. I'm hand on heart saying that.[28]
[28] Transcript/58.
It is, in my view, important in considering this issue to look at the whole of the applicant’s life in Australia. He arrived with his parents as a six-year-old and attended school in Western Australia. His working life as described by the applicant at the hearing was as follows:
·at 16 years of age (while still at school) the applicant worked as a casual at the Sebel Hotel in Perth;
·when the applicant finished school, he was employed at the Hyatt Regency for about 12 months, initially as a functions waiter then as a full-time houseman in housekeeping;
·the applicant then worked at the Holiday Inn (part of the Intercontinental Hotel group) as a porter;
·in about 2000 the applicant transferred to the Park Royal, an Intercontinental Hotel in Melbourne;
·In 2001 the applicant returned to work at the Holiday Inn in Perth where he worked until 2003;
·the applicant says that in 2003 he became serious about a career in hospitality, so he transferred back to the Park Royal in Melbourne where he says that he started “from the bottom again” as a porter, parking cars and carrying bags full time;
·the applicant then got the opportunity to move into management if he was willing to go onto nightshift, which he did for two years doing the “graveyard shift” (11:00pm to 7:00am);
·the applicant moved to a role as assistant night manager, then to night manager and then to duty manager on dayshift. He was promoted to front office manager when the opportunity became available and then promoted to assistant operations manager. This was all within the period of 2006 to 2009.
The applicant’s evidence was that he was due to be married in 2010, however, that relationship broke down shortly before the planned wedding. He and his partner had bought an apartment. The end of that relationship caused the applicant considerable grief and he decided to take four months’ unpaid leave. He bought a campervan and travelled around the east coast and central Australia, then back to Perth. He was then employed running a hostel in Perth, and it was while working there that he was introduced to and tried methylamphetamine. This led to the downward spiral that resulted in the applicant committing the armed robbery in August 2011.
The applicant spent 41 days in remand in Hakea Prison after his arrest. He was receiving treatment through the Abbotsford Clinic for his addiction at the time of his arrest in 2011. Following the applicant receiving the suspended sentence in 2012, he and his then girlfriend, who was also passionate about hospitality, decided that they wanted to open and run a café. They identified a suitable property in Melbourne and, with the financial help of the applicant’s parents and building/renovation help from the applicant’s brother-in-law, who is a builder, were able to open for business within three months of securing the lease on the premises. The applicant says that they worked hard, six days a week, 12 hours a day, and managed to establish a commercially viable business[29] which after three years they were able to sell at a profit after paying those who had helped fund the development of the business.
[29] Transcript/15.
The applicant and his partner returned to Perth after taking some time off in Asia. Back in Perth, the applicant and his partner decided to form a consultancy business for struggling café businesses, based on their experience in developing and running the café in Melbourne. They were retained by the owners of a coffee roasting/supply business, with whom they had connections from running their business in Melbourne, to review a business in Perth that those connections were considering buying. The applicant and his partner ended up taking over the running of the business (which was in disarray) for around six months and, according to the applicant, “changed the menu, changed the roaster, got a coffee roaster in and really made that business back into what it should've been”.[30]
[30] Transcript/17.
The applicant’s evidence was that he was working too hard in this period and neglecting his mental health. His relationship with his then partner ended, and the applicant says that he found himself slipping pack into drug use which culminated in him trying to take his life in 2016. The applicant estimated that this episode of drug use lasted about two months, after which time he managed to get off the drugs.[31]
[31] Transcript/17.
In 2017 he started a relationship with an old friend who suffered from cystic fibrosis. This relationship, the applicant said, helped him to pull himself together and shortly after he started cooking at a couple of businesses in Perth. By the beginning of 2018 he had decided to return to the hospitality industry more seriously. Based on his experience he was able to get a job with Quest as part of an opening team for a new Quest operation in Midland. He worked in the Midland Quest for about three months after which an opportunity arose for him to manage the Mounts Bay Road Quest. He managed that Quest from July to October 2018 at which time Quest transferred him to the role of national relief property manager, which, the applicant says, kept him on the road for the better part of 18 months. In this role he managed properties in Adelaide, Darwin, Townsville and Melbourne.
In early 2019 the applicant was given the job of opening Quest South Perth after which he returned to managing a Quest in Darwin for three months and then, in early 2020, managing Quest Mounts Bay Road. The COVID-19 pandemic struck Australia in March 2020. Not only did this cause great disruption to his work, but because his partner suffered from cystic fibrosis, she had to move to her parents’ remote property and isolate. The applicant says that he and his partner then drifted apart.
On the work front, the applicant was asked to manage two properties, the Mounts Bay Road operation and the Kings Park Road Quest. Work pressures increased and the applicant again found himself slipping back into drug use through an old acquaintance that he said he ran into coincidentally. It was these circumstances that resulted in the applicant using and selling methylamphetamine which led to his offending in late 2021.
The applicant has demonstrated himself to be capable of hard work in positions of responsibility over extended periods. Through his work, he has made significant contributions to the Australian community. His drug use over more than 20 years has been limited to three relatively short periods, resulting from stress in his life.
I acknowledge the Minister’s submission that the supports that the applicant cites as being protective against his returning to drug use were largely present when he previously slipped into drug use and offending. The applicant, however, struck me as an honest person who recognises his vulnerability and has done as much as he can to address those vulnerabilities. He was frank in his evidence that he could not claim that he was no risk of reoffending (see [50] above). That, however, is not the relevant test. No-one can honestly make that claim. I am satisfied that for the reasons summarised by the applicant in his evidence quoted at [50] and identified in [49] and [51] above and his commitment to ongoing treatment (as well as maintaining medication for his mental health issues), that the applicant is a low risk of offending.
I also appreciate that the applicant offended after he had been given a formal warning, however, I accept his evidence (supported by his sister’s evidence) that the applicant’s more recent experience following his imprisonment and detention, have made him realise the dire consequences of visa cancellation in a way that the written warning did not.
In assessing the risk that the applicant poses, I also take into account the rehabilitation programs with which the applicant has engaged, and the fact that he was granted parole.[32] The Parole Review Report[33] noted that Hakea unit staff described the applicant as “polite and courteous”, that he interacted well with staff and other prisoners and that there were no adverse incidents in his prison history.[34] That report also referred to “[a] notable gap in his court history between 2011 and 2021 has been attributed to meaningful employment and demonstrates his ability to live pro socially within the community.”[35]
[32] R1/55.
[33] R2/335–40.
[34] R2/338.
[35] R1/340.
The rehabilitation programs available to the applicant while he was in prison were limited. I asked him what programs he had undertaken. His evidence was:
APPLICANT:   There were no programs available to me based on the short amount    of time I was incarcerated, no government funded programs. It's only   that I went privately. I'd spoken to - I'd stayed in regular contact with   Fresh Start which was the clinic that I was involved in, (indistinct)   where I was going for psychology and drug nurse, spending time with   those guys, talking to those guys. They put me on to Whitehaven.   At Whitehaven there's an intensive one on one drug and alcohol   rehabilitation course. That was all I could do, I couldn't do anything.                   There was nothing on offer at Hakea, so I did Whitehaven at    significant expense; [$4,400] I think it was.
TRIBUNAL:     That was via video was it?
APPLICANT:   No, that was one on one. At that stage COVID as it was, we could    still have visitors to the prison so once a week over three months 12   sessions, consecutive weeks, Anna Roberts, my therapist as such,   and so she came and swept through a lot of things over that time.   But in terms of - you know, everything that I had structured and put   in place, in terms of my rehabilitation and ongoing support, they've   all been taken away. These are things that I mentioned, they're in   my parole report, the findings of those guys, I was very well structured                   and set up for that continued talk therapy, continued drug and alcohol   assistance with the help of Fresh Start and my psychologist. I never   thought I'd be here so I'd gone ahead and put everything in place in   terms of needing to be well supported, you know, assuming that I was   going to get out of my first parole request, which I was granted but   obviously because of the visa cancellation…[36]
[36] Transcript/23.
Whitehaven program facilitator, Hannah Roberts-Hill, provided a report dated 4 August 2021[37] confirming that the applicant completed 10, 90-minute, one-on-one counselling sessions. Under the heading “In Summary”, Ms Roberts-Smith stated that:
The work that Brendon has done with me shows that he is very capable of maintaining his positive future direction. He is reflecting on his past actions and has gained considerable insight into why he does what he does. He is learning his psychologically based fears and triggers and understanding the benefits of staying emotionally and mentally healthy.
Since Initial engagement I have seen significant progress in Brendon’s growth and capacity for change. His developing self-awareness, combined with an ongoing focus on maintaining emotional and mental healthiness, will continue to provide a solid platform from which Brendon can make the necessary changes to improve his quality of life in a sustainable way without resorting to drug use.
[37] R1/95–108.
Richmond Wellbeing, which runs the MHConnext and the Fresh Start Recovery Programme for addiction, provided a letter dated 4 May 2021.[38] The author of that letter concluded that he had:
… witnessed an attitude change whilst working with [the applicant], his perspective on life, communication skills and coping strategies have improved giving him well rounded social skills. I can only say I have high expectations for Brendan and believe he will continue to improve his behaviours if given a chance to change.
[38] R1/109.
On the basis of the nature of the applicant’s offending, the harm that might be caused if such offences were repeated and my assessment of the applicant being a low risk of offending, I find that the risk that the applicant poses to the Australian community is not an unacceptable one. The Australian community would, axiomatically, be better protected, if not totally protected, if the applicant were permanently removed from Australia. In that sense any risk that the applicant might offend must weigh against revocation of the cancellation of the applicant’s visa. However, given my assessment of the risk of the applicant offending as low, and his not being an unacceptable risk to the Australian community, this first primary consideration, while it weighs against revocation of the cancellation of the applicant’s visa, should be given only minor weight.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
There is no evidence before me that the applicant has ever engaged in family violence and the Minister does not contend that this is a relevant consideration. I find that this consideration is not relevant to this matter.
Third primary consideration: The best interests of minor children in Australia (para 8.3)
Paragraph 8.3 of Direction 90 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to ... not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)    the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)    whether there are other persons who already fulfil a parental role in relation to the child;
f)     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The applicant has no children of his own. He identifies two children as being relevant to this consideration, his 14-year-old nephew and his 10-year-old niece, children of the applicant’s sister. In his statement provided to the department seeking revocation of the cancellation of his visa, the applicant stated that:
Although I have no children of my own, I have always played a key role in lives of my Sisters children [nephew] and [niece] … [T]he thought of being ripped away from them is the single biggest regret I have from all of this. I would see the children every day when I was living in Melbourne and was heavily involved in their sporting and academic endeavors. COVID-19 has meant that I have not seen the kids for close to 2 years and the possibility of having that further extended breaks the heart of both myself and my beloved Sister [omitted]. [Sister] and I are extremely close and I am so ashamed of the hurt I have put her through and the effect my being excluded from the lives of her children is having on them. Note that my entire family are Australian citizens and have been for many years.[39]
[39] R1/78.

The applicant expanded on this at the hearing:
TRIBUNAL:     Can you tell us a bit about your relationship with your nephew and   your niece, your sister's children?
APPLICANT:   Yes. I've got a great relationship with those kids and still my sister    and her husband [omitted]. Yes. You know, I've lived with them on   and off over the time or when I've needed to. When we lived together   at North Perth [nephew] was a baby, he was only 12 months old I   think. I named my café after [nephew] in Melbourne, it was [nephew]   Café, named after him. And I would just spend as much time with   him as I possibly could, we'd see them three or four times a week.   They would come into the café on the weekend, every weekend, and   just eat free, do whatever they wanted, and [nephew] started telling   people that the café was named after him. You know, I played a    significant role in their lives up until I came back to Perth, and you   know, with COVID I've not seen them for three years.
TRIBUNAL:     Have you stayed in touch by other means, have you…
APPLICANT:   Yes, of course, I speak to my dad every day. I speak to mum three    or four times a week. I speak to my sister. The contact with the kids   has been a little bit less over the last few months because they know   what's happened, they know that [the applicant] got in trouble and   that I was doing drugs and I got in trouble and I've been removed   from the country. It was my sister's decision to tell them that. I just   struggled with that a little bit, just embarrassment and just letting   them down because they're still little.
TRIBUNAL:     Since you've been - sorry, that's your nephew, what about your niece,                   do you - - -
APPLICANT:   Yes, I spoke to [niece] briefly today about getting ready to go to    school. Yes, I just need to be part of their life. The prospect of   missing out on all their big occasions and not being there for sporting   events, because they're both so athletically gifted, particularly   [nephew], he came second at the [omitted] this year for his age   group, and he's a serious competitor, and basketball. Just the   possibility of missing out on all of that, you know, it's just devastating;   devastating.[40]
[40] Transcript/24–5.
The applicant’s sister, the mother of the two children, in her statement dated 21 October 2021[41] stated that the applicant had “always been a regular presence and contributor in the life of my children”, and that deporting the applicant would have an impact on the mental health of her children. At the hearing, the applicant’s sister’s evidence was that:
[Her children’s] connection to [the applicant] is very strong even more so than their locally living uncle, and I think that it's because of the interest that he has always shown in their lives, and when they see the bond between my brother and I they can feel the same love from him that I feel from him, and so that bond to them and to us is very precious.[42]
[41] R1/114–5.
[42] Transcript/49.
In relation to the impact that the applicant being deported would have on the children, the applicant’s sister’s evidence was:
[T]hey only have two uncles. They don't have anyone else but us. They have my parents and they have my in-laws, that's it. Yes, the things that Brendon doesn't realise is what he has to offer our family, including my children, in terms of the life experience and in terms of how he cares and protects us. In my times of need he's the one that's been there for me and I try to do my best to the same for him. He can provide that also for them. I don't want them seeing him and knowing him for this reason and not for all the goodness that he brings to, you know, all of us. And for them I think it would be extremely distressing at this point. They've just been told that he's had to go to New Zealand and the reasons why in very basic terms. But from their perspective all they want to know is that everything is being done to try to bring him home.[43]
[43] Transcript/50.
The Minister accepts that the best interests of the applicant’s nephew and niece would be served in revoking the cancellation of the applicant’s visa,[44] but submits that this consideration is outweighed by other primary considerations, particularly as the applicant does not play a parental role.
[44] Minister’s SFIC para 38.
I accept that the applicant is close to his nephew and niece. I accept that the applicant is particularly close to his nephew, and that the best interests of both children would be served by the revocation of the cancellation of the applicant’s visa. It is the case that the applicant does not play a parenting role,[45] however, the applicant has had a relationship with the children for the whole of their lives.[46] I accept that the applicant is likely to play a positive role in their lives[47] and that the impact of the applicant’s removal is likely to be significant.[48]
[45] Direction 90 para 8.3(4)(e); see [69] above.
[46] Direction 90 para 8.3(4)(a).
[47] Direction 90 para 8.3(4)(b).
[48] Direction 90 para 8.3(4)(d).
I find that this consideration weighs in favour of the revocation of the cancellation of the applicant’s visa and that moderate weight should be given to it.
Fourth primary consideration: Expectations of the Australian community (para 8.4)
Paragraph 8.4 of Direction 90 relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition ... non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/ material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case. The principles set out in para 5.2 of Direction 90 as set out in [23] above are also relevant to this consideration.
In FYBR v Minister for Home Affairs[49] the Full Court of the Federal Court of Australia considered the operation of the corresponding provisions in Ministerial Direction No 65[50] (a predecessor to Directions 79 and 90: see [21] above). The relevant provisions of Direction 90 contain generally similar wording to the corresponding provisions in Direction 65.
[49] [2019] FCAFC 185; (2019) 272 FCR 454.
[50] 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).
In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[51] I summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows:
156.... The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
[51] [2020] AATA 3953.
Justice Stewart in FYBR found:
89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
(Emphasis omitted.)
Justice Charlesworth also observed:
75.Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
79....The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In 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. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
(Emphasis omitted.)
Due to the application of the “norm”, as it is now referred to in para 8.4(1) of Direction 90, and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the applicant’s visa.
I must, however, determine what weight should be given to this consideration. Some guidance in this regard is provided by para 8.4(2) Direction 90 (see [77] above) which provides that the Australian community expects that the Australian Government can, and should refuse entry to non-citizens if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.4(2)(a)–(f).
The Minister refers to the principles in para 5.2 of Direction 90, in particular to the principle that the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes, and non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia. The Minister contends that, whilst it may be true that the community may have afforded the applicant a greater level of tolerance given his lengthy tenure in this country, it is equally the case that the inherent nature of some conduct is so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory visa cancellation, even if the non-citizen does not pose a measurable risk of causing physical harm. The Minister submits that a violent robbery and the devastation which results from the proliferation of methylamphetamines is precisely this kind of conduct.
I do not agree that the applicant’s conduct falls into the category described in para 5.2(5) of Direction 90 as contended by the Minister. While the offences identified by the Minister are serious, they are not of a nature, or so serious that they would, in their own right, preclude revocation of the cancellation of the applicant’s visa. That category of offences, which in effect overrides the other considerations of Direction 90, must be reserved for the most serious type of offending likely to have serious consequences to the community. That is not the case here.
I find that some greater tolerance would be afforded by the Australian community in the present case due to the fact that the applicant arrived as a child and has spent the majority of his life gainfully employed and contributing to the Australian community. I am also of the view that the applicant’s potential to again contribute to the community, and the fact that his offending consists of two episodes some ten years apart, would also afford him greater tolerance with the Australian community.
The application of the “norm” under Direction 90, as guided by the Full Court in FYBR, means that this consideration weighs against revocation of the cancellation of the applicant’s visa, however, for the reasons set out above, I determine that minor weight should be given to this consideration.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 90 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section ... 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)    international non-refoulement obligations;
b)    extent of impediments if removed;
c)    impact on victims;
d)    links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests
International non-refoulement obligations (para 9.1)
The applicant has not raised any claims in respect of non-refoulement and none appear to arise on the material before the Tribunal. I am satisfied that this is not a relevant consideration in this matter.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 90 provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen 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 relevant consideration is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c), the applicant would face an impediment or impediments in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of New Zealand enjoy.
The Minister concedes that the applicant is likely to experience some hardship as a result of returning to New Zealand and that there are likely to be some transitional difficulties. The Minister contends, however, that those impediments would by no means be insurmountable. New Zealand is a country which is broadly comparable to Australia in terms of language, culture and access to employment, health services, education and social security.[52]
[52] Minister’s SFIC para 47.
The Minster further contends that the applicant has previously returned to live and work in New Zealand and that therefore it could not be said that New Zealand is a wholly unfamiliar country. The Minister also points to the help that can be provided to the applicant in establishing himself by organisations in New Zealand such as People at Risk Solutions, an organisation that provides assistance to individuals removed from Australia to New Zealand.
I accept that New Zealand is a country which is broadly comparable to Australia in terms of language, culture and access to social services,[53] however, the applicant’s employment opportunities are likely to be considerably more limited in New Zealand than they would be in Australia. As the Minister’s counsel noted in opening, this is a slightly unusual case in that the applicant has returned to New Zealand and “now has some firsthand experience of what it is to be returned to New Zealand.”[54]
[53] See Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [44].
[54] Transcript/4.
The applicant shared some of that “firsthand experience” at the hearing:
It's not only society wants nothing to do with you, and the 501 is such a hot topic. If we're getting back to the topic of what's life like for me being here, I can expand on that. The 501 is being a leper over here. It's a mark, it's an automatic branding of - that you're a shit person. That's just what comes along in the moniker and I open my mouth, people hear my accent, that's the giveaway. You know, people look at my resume and go, "Hang on a minute", you know, "(a) what have you been doing for the last 18 months, best part of?", and "(2) why would you come back to New Zealand after 36 years?" people aren't stupid. You know, 501 is such a hot button topic here in New Zealand, constantly in the media, constantly in the news, because unfortunately the majority of people that do get sent back under this legislation are bad people.
…
I don't have a lot, but, I mean, reality is that I've been in the country now for six weeks, and I'm still okay. You know, I haven't been able to survive off the $313 less whatever they're going to take from me on the benefit. I still have money in my account to keep me fed.[55]
[55] Transcript/30–1.

The applicant’s evidence also was that he had applied for about 50 jobs in New Zealand but had been unsuccessful.[56] His evidence was also to the effect that, as well as the employment market being much tighter in New Zealand than Australia, the cost of living is higher:
Jobs that I know how to do, basically, you know, jobs that are within my specific skillset, but I'm going for cooking jobs; mainly hotel jobs. That's where my skills lie, basically. I could go out and get a job stacking shelves, I'm sure I could, but, you know, the reality is I need to earn money. The living expenses, the cost of living in New Zealand is astronomical. For example, petrol's $3.30 a litre. Rent, if I was to remain in Auckland, in Auckland CBD or surrounds, I'm looking at a minimum of $450 a week rent for a shoebox. The costs of food is so much higher than what I'm used to. I don't know how people survive, it makes it clear as to so many people leave here to come to Australia.[57]
[56] Transcript/27; A4.
[57] Transcript/27.
I accept that the applicant will eventually be able to establish himself to a basic living standard. He does have contact with at least one of his two uncles in New Zealand[58] and, because of his experience and strong work ethic, I am satisfied that he will find work and be able to establish basic living standards. In his closing submissions the applicant put it as follows:
I can't honestly sit here and say that I won't survive, because I will. I will. I'm not going to die because I've been sent back to New Zealand.[59]
[58] Transcript/30.
[59] Transcript/59.
In closing the Minister’s counsel submitted that, while the Minister accepts that the applicant is facing some initial difficulties on his return to New Zealand, it cannot be said, based on all of the evidence, that this factor weighs in favour of revocation. At best this factor should be given neutral weight.[60] I do not accept the Minister’s submission. I find that this consideration does weigh in favour of revocation of the cancellation of the applicant’s visa, however, largely for the reasons identified by the Minister, I find that only minor weight should be given to it.
[60] Transcript/56.
Impact on victims (para 9.3)
Neither party identified this as a relevant consideration, and I find that it is not to be relevant in the present case.
Links to the Australian Community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties to Australia (para 9.4.1)
Paragraph 9.4.1 of Direction 90 is as follows:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant arrived in Australia in 1986 as a six-year-old and, except for a brief period (and presently), has spent his life in Australia. He did not start offending until 2011 and has, except for two relatively brief periods prior to his arrest, contributed significantly to the Australian community (see [52]–[60] above). Under the principle set out in para 9.4.1(2)(a)(ii), I therefore give more weight to the fact that the applicant arrived in Australia as a child and has spent some 36 years in Australia.
It is clear from the statements provided by family members, in particular the applicant’s parents and his sister, that there would be a significant impact on the applicant’s family members if he was not permitted to return. The applicant’s mother’s evidence at the hearing was that the impact of the applicant not being able to return to Australia:
… would be huge. Obviously we love him and miss him, but also at this age you can't travel as freely, as a pensioner. I would not see him for years, probably only every couple of years. Just now I've just had surgery about a week ago. I would have asked him to come and stay with me and help me, because I can't drive for about a month, maybe six weeks. Just those sorts of things would make a huge difference. And of course I would want to go and visit him, but it would be very difficult.[61]
[61] Transcript/45.
The applicant’s father’s evidence was that the applicant not being allowed to return to Australia:
… would be gut wrenching. I suffer from bad health, I've had three cardiac arrests in the last four or five years. I have a daily infusion that I have to administer to myself every day just to stay alive, and I want to - hope to be in a position to maximise the time that I get to spend with my son.[62]
[62] Transcript/43.
In relation to whether he would be able to visit his son in New Zealand, the applicant’s father’s evidence was, that because of his medical conditions and his need for four transfusions a day:
It would be extremely difficult, only from a medical point of view. I would have to arrange, and I don't even know whether it could be arranged, but I'd have to arrange for medical supplies to be supplied to me over there.[63]
[63] Transcript/43.
In describing the impact on her children if the applicant were not able to return to Australia, the applicant’s sister’s evidence at the hearing was:
[The applicant’s nephew and niece] only have two uncles. They don't have anyone else but us. They have my parents and they have my in-laws, that's it… [I]t would be extremely distressing at this point.
(See also [73] above.)
In relation to the impact on that the applicant’s inability to return to Australia would have on the applicant’s sister, her evidence at the hearing was:
You'd take my best friend away from me. Seeing him through a screen is not the same as hugging him, holding onto him makes me feel protected and safe. I need to have him in my life. I'm only five foot three and he's six foot three, and even though I'm older than him I've always looked after him, so not being able to look after him right now is very difficult, and the same in the reverse, that when I need someone in my life when things aren't the ultimate way I would like them to be he's the one that can make me feel it'll be okay.[64]
[64] Transcript/50.
Beyond the immediate family members, it is clear from the statements that have been provided[65] that the applicant has substantial links to the Australian community and that there would be a significant emotional impact on those close to the applicant if he was not able to return to Australia.
[65] A1; A5; A6; R1/111–6; R1/124–5; R1/127–8; R1/129–30; R1/131; R1/132.
The Minister’s position is that the applicant has resided in Australia for a very lengthy period after arriving here as a young child and that the applicant has provided evidence of links to the community. The Minister concedes that the applicant has tertiary qualifications, a consistent employment history and significant family support.[66]
[66] Minister’s SFIC para 52.
The Minister concedes that the applicant has reasonably strong ties to Australia but submits that these should not outweigh the protection and expectations of the Australian community in the final weighing exercise.[67]
[67] Minister’s SFIC para 53.
Whether this particular consideration does or does not outweigh any other particular consideration (or considerations) is not the relevant test. In weighing the considerations, primary and other, the exercise is not one of comparing one against another, but rather of giving weight to each of the considerations and weighing them as a whole, those for and those against revocation and determining which have the greater weight in total, those for or those against revocation.
I find that this consideration, links to the Australian community, weighs heavily in favour of revocation of the cancellation of the applicant’s visa.
Impact on Australian business interests (para 9.4.2)
Paragraph 9.4.2 provides:
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Minister contends that the applicant’s employment history has not been such that his removal from Australia (not being able to return) would mean that the successful completion of a major project or the delivery of an important service in Australia would be compromised.
I agree with the Minister’s assessment and find that this is not a relevant consideration in the present case.
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [25] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[68] and the Full Court judgment in Minister for Home Affairs v HSKJ.[69]
[68] [2018] FCA 594; (2018) 74 AAR 545.
[69] [2018] FCAFC 217; (2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[70] At [21] Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(Emphasis omitted.)
[70] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
The Tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...
I adopt the approach directed by the above cases. I also refer to my comments on the weighing exercise in [112] above.
I find that the first primary consideration, the protection of the Australian community, weighs against revocation of the cancellation of the applicant’s visa, however, that only minor weight should be given to that consideration.
The second primary consideration, family violence, is not relevant in this case.
I find that the third primary consideration, the best interests of minor children, weighs in favour of the revocation of the cancellation of the applicant’s visa and that moderate weight should be given to it.
The fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the applicant’s visa, however, I find that only minor weight should be given to this consideration.
In relation to the “other considerations” identified in Direction 90, the only two considerations relevant in the present case are the extent of impediments if removed, which I find weighs in favour of revocation, but that only minor weight should be given to that consideration, and links to the Australian community, which I find weighs heavily in favour of revocation of the cancellation of the applicant’s visa.
Having weighed the considerations in favour of the revocation of the cancellation of the applicant’s visa and the considerations against the revocation of the cancellation of the applicant’s visa, I find that the considerations in favour of revocation, particularly the links to the Australian community, outweigh those against revocation. Accordingly, I find that there is another reason why the original decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 6 May 2022 not to revoke the cancellation of the applicant's Class TY Subclass 444 Special Category (temporary) visa pursuant to s 501CA(4) of the Act is set aside and substituted with the decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.

I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 29 July 2022

Date of hearing: 11 July 2022

Applicant: Self-represented

Counsel for the Respondent: Ms B Griffin

Solicitors for the Respondent: Australian Government Solicitor
ANNEXURE

Court Result Date Offence Result

Perth District Court of Western Australia 19 August 2021 Possession of a prohibited drug with intent to sell or supply (methylamphetamine) 10 months’ imprisonment (concurrent) from 2 March 2021

Perth District Court of Western Australia 19 August 2021 Possession of a prohibited drug with intent to sell or supply (methylamphetamine) 14 months’ imprisonment (concurrent) from 3 March 2021

Perth District Court of Western Australia 19 August 2021 Possession of stolen or unlawfully obtained property Four months’ imprisonment (cumulative) from 3 March 2021

Perth District Court of Western Australia 19 August 2021 Sold a prohibited drug namely methylamphetamine Six months’ imprisonment (concurrent) from 3 March 2021

Perth Magistrates Court 24 March 2021 Possessed drug paraphernalia in or on which there was a prohibited drug or plant $400 fine

Perth Magistrates Court 24 March 2021 Possessed a prohibited weapon $800 fine

Perth Magistrates Court 24 March 2021 Possessed drug paraphernalia in or on which there was a prohibited drug or plant $400 fine

Perth Supreme Court of Western Australia 19 March 2012 Armed robbery Three years’ imprisonment, conditionally suspended for 18 months (program and supervision conditions)

Perth Magistrates Court 26 July 2011 Possess a smoking utensil used for smoking prohibited drug $350 fine

Perth Magistrates Court 26 July 2011 Possess a smoking utensil used for smoking prohibited drug $300 fine

Perth Magistrates Court 26 July 2011 Possession of prohibited drugs with intent to sell or supply (amphetamine) $1,000 fine

Date of hearing:	11 July 2022
Applicant:	Self-represented
Counsel for the Respondent:	Ms B Griffin
Solicitors for the Respondent:	Australian Government Solicitor

Court	Result Date	Offence	Result
Perth District Court of Western Australia	19 August 2021	Possession of a prohibited drug with intent to sell or supply (methylamphetamine)	10 months’ imprisonment (concurrent) from 2 March 2021
Perth District Court of Western Australia	19 August 2021	Possession of a prohibited drug with intent to sell or supply (methylamphetamine)	14 months’ imprisonment (concurrent) from 3 March 2021
Perth District Court of Western Australia	19 August 2021	Possession of stolen or unlawfully obtained property	Four months’ imprisonment (cumulative) from 3 March 2021
Perth District Court of Western Australia	19 August 2021	Sold a prohibited drug namely methylamphetamine	Six months’ imprisonment (concurrent) from 3 March 2021
Perth Magistrates Court	24 March 2021	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	$400 fine
Perth Magistrates Court	24 March 2021	Possessed a prohibited weapon	$800 fine
Perth Magistrates Court	24 March 2021	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	$400 fine
Perth Supreme Court of Western Australia	19 March 2012	Armed robbery	Three years’ imprisonment, conditionally suspended for 18 months (program and supervision conditions)
Perth Magistrates Court	26 July 2011	Possess a smoking utensil used for smoking prohibited drug	$350 fine
Perth Magistrates Court	26 July 2011	Possess a smoking utensil used for smoking prohibited drug	$300 fine
Perth Magistrates Court	26 July 2011	Possession of prohibited drugs with intent to sell or supply (amphetamine)	$1,000 fine