Jattan and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3630

Jattan and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3630 (9 November 2023)
Division:GENERAL DIVISION
File Number: 2023/6275
Re:James Jattan
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:9 November 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by a delegate of the Respondent dated 16 August 2023 to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
.......................[SGD].........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
9 November 2023

Mr James Jattan (‘the Applicant’) is a 40-year-old man born in New Zealand on 29 May 1983. He first arrived here in August 1994. The remainder of his movement history may be stated thus:
·departed Australia in September 1994;
·arrived in Australia in August 2005;
·departed Australia on 10 March 2006;
·arrived in Australia on 13 March 2006;
·departed Australia in February 2011; and
·arrived in Australia on 14 September 2013 and has remained here since.
With the exception of the 30-month period between February 2011 and September 2013, it can be safely found that the Applicant has resided in Australia since his abovementioned arrival in August 2005.Following his most recent arrival in September 2013 he has held a Class TY Subclass 444 Special Category (Temporary) visa (‘the Visa’). On 19 August 2021 the Applicant was convicted of offending in the realm of (1) illicit drugs and (2) prohibited firearms and other weapons offending and (3) ‘participate criminal group contribute criminal activity’. For this offending he received a head custodial sentence of five years and 10 months.
Consequent upon this sentence a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’ or ‘the Minister’) mandatorily cancelled Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on 1 September 2021. On 24 September 2021, the Applicant made the requisite representations to secure revocation of that mandatory cancellation. These representations were not fruitful because a delegate of the Respondent did, on 16 August 2023, refuse to revoke the mandatory cancellation decision. There followed an application to this Tribunal on 25 August 2023 for review of the delegate’s decision refusing to revoke the mandatory cancellation of the Visa.
This hearing proceeded before me by video on 19 October 2023 (‘the Hearing’). The Hearing received both oral and written evidence. In terms of the written evidence, both parties agreed with and approved an exhibit list I caused to be distributed to them a day or so prior to the Hearing.[1] Attached to these Reasons and marked ‘Annexure A’ is a true and correct copy of the relevant exhibit list. The only witness who provided oral evidence to the Hearing was the Applicant.
[1] See Transcript, p 2, lines 30-40.
In reviewing the material prior to the commencement of the Hearing I noted that the Applicant had filed absolutely no material at any time during the interlocutory phase. At the Hearing, I was cautious to ensure the Applicant was afforded procedural fairness and allowed further time to put on material, even if that meant adjourning the Hearing to a time more deeply into the 84-day period governing the conduct of these matters.[2] The transcript contains the following exchange between me and the Applicant at the commencement of the Hearing:
[2] Pursuant to s 500(6L)(c) of the Act.
‘SENIOR MEMBER: All right. Okay. Well, let’s get on to the submissions. Now, in terms of submissions, there’s two types of submissions that you can make in a hearing like this. The first of those, as you’ve alluded to, is written submissions. So, you’ve just told us that you’re quite right that you haven’t put into the tribunal any written submissions. That’s right, isn’t it? You haven’t put any in?
MR JATTAN: That’s correct.
SENIOR MEMBER: Okay. Do you want a chance to do that or are you happy to carry on in this hearing without having put in any written submissions?
MR JATTAN: I’d like to proceed, please.
SENIOR MEMBER: So, you want to go ahead today on the basis of whatever is in front of me now. Is that right?
MR JATTAN: Yes, sir.
SENIOR MEMBER: All right. Thank you, Mr Jattan. Just in the interests of procedural fairness, as that may be assessed by others perhaps later, Mr Burnham, I felt minded to offer the applicant an opportunity to adjourn today for a relatively short period of a few days to allow him the reciprocal fairness arising from an opportunity – giving him an opportunity to file further documents – file any documents. It appears that he’s declined that opportunity. Any submissions on that element, Mr Burnham?
MR BURNHAM: No. And I note that the applicant will obviously have the opportunity to make submissions at the conclusion of the hearing once the evidence is concluded.’[3]
[My emphasis]
[3] Transcript, p 2, lines 42-47; p 3, lines 1-25.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
Does the Applicant pass the character test?
It is beyond argument that the Applicant does not pass the character test. I agree with the position taken by the Respondent[4] to the effect that the Applicant’s failure to pass the character test arises as a matter of law.[5] This is because this Applicant has a ‘substantial criminal record’ due to him being sentenced to a term of imprisonment of five years and 10 months imprisonment on 19 August 2021.[6] Accordingly, it can be safely found that he does not pass the character test and, as a consequence, cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[4] R2, p 4, [19].
[5] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[6] Pursuant to ss 501(6)(a) and 501(7)(c) of the Act; R1, 29.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[7]
[7] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia 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.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the

non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to
keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
I am not aware of the material containing any reference to the Applicant’s commission of offences outside Australia. In Australia, he has compiled criminal history that, in terms of sentencing dates, runs from January 2010 to August 2021. During that period, he committed 14 separate offences that were dealt with at six separate sentencing episodes. He has offended in the realms of: (1) traffic/driving; (2) possession and supply of illicit drugs; (3) possession of goods suspected of being stolen; (4) firearms / weapons offences; and (5) ‘participate criminal group contribute criminal activity.’[8]
[8] R1, pp 28-30.
His most significant offending, both in terms of the number of offences committed, the nature of the offences committed and the severity of the sentence, was dealt with by the Coffs Harbour District Court on 19 August 2021. On that sentencing day, the Applicant was convicted of five offences and sentenced to a head custodial term of imprisonment aggregated to five years and 10 months commencing on 14 November 2019 and concluding on 13 September 2025 with a non-parole period of three years and four months commencing on 14 November 2019 and concluding on 13 March 2023. Upon release in March of this year the Applicant was taken into immigration detention.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
Prior to considering both of these elements, I will review the Applicant’s evidence given both in-chief and in cross-examination.
The Applicant’s evidence-in-chief
As mentioned, the Applicant did not file any written material and when offered a further opportunity to do so, even if it meant adjourning the instant Hearing, he declined that opportunity. Out of an abundance of caution and to afford the Applicant procedural fairness, I took him to three documents in the material that I thought he should (1) identify and (2) verify and confirm to be true and correct. The first of those documents comprises the Personal Circumstances Form (‘PCF’)[9] the Applicant lodged with the Respondent’s Department at the time he made representations to have the mandatory cancellation of his Visa revoked.
[9] R1, pp 56-70.
This PCF was put up on the computer screen for the Applicant to peruse and there followed this exchange between me and him:
‘SENIOR MEMBER: Okay. And this document finished at page 70 – seven zero. So, we’ll scroll through to 70. Now, as I say – as you say, you recall that document. Do you stand by the contents of that document? Do you still agree that what’s in that document is true and correct?
APPLICANT: ---Yes.
SENIOR MEMBER: Right. Are there any changes that you would like to make to whatever is in that personal circumstances form document?
APPLICANT---No.’[10]
[10] Transcript, p 4, lines 39-45.
The second of those documents to which I took the Applicant appears in the material. It is a hand-written letter by him dated 21 November 2022. There followed this exchange between me and him:
‘SENIOR MEMBER: Right. Now, there’s another – it’s on a short handwritten statement. It’s in the form of a letter, and that’s dated also 21 November 2022. I’ll put that up on the screen for you. There it is. Now, can you see that handwritten letter?
APPLICANT: ---Yes. I do remember that letter. Yes.
SENIOR MEMBER: Okay. Do you want a chance to read through that and let me know if you want to make any changes to it, or do you recall it?
APPLICANT: ---No. I recall the letter. Yes. And there’s no changes to that at all.
SENIOR MEMBER: Okay. And you’re happy with the content of that letter as it is?
APPLICANT: ---Yes.’[11]
[11] Transcript, p 5, lines 1-10.
The third document to which I took the Applicant was a result of a courteous and helpful intervention by the Respondent’s representative who alerted me to this particular document which appears in the material and is actually part of the Applicant’s application to this Tribunal. In particular, the Respondent’s representative took me to the narrative inserted by the Applicant under the heading ‘Reasons for the application’.[12] This particular document was put up on the computer screen for the Applicant and I invited him to look through it and to satisfy himself as to its correctness. There followed this exchange between me and him:
‘SENIOR MEMBER: Standby, Mr Jattan. We’ll put that up on the screen for you as well just to check and to confirm that you’re happy with it. There it is?
APPLICANT: ---Yes. I do recall that.
SENIOR MEMBER: Right. You recall that now. Are there any changes you would like to make to that, Mr Jattan? Have a look. Take your time. Don’t feel in a hurry?
APPLICANT: ---There’s not so much changes. Like, at the time I believed that was correct, but after reading like some of the stuff that got submitted to me there was stuff in there that I didn’t even remember. So, like, yes. Like, I do – I do – yes. I do standby it but – yes. My understanding of the decision of why my visa is cancelled and why I’m to be deported I kind of understand it a bit more now considering the – yes, the whole situation and, like, what’s been presented before me.
SENIOR MEMBER: Yes. Well, that’s good. So – all right?---(Indistinct).Yes. Yes. Well, we’ll get to that in a minute. So, you’re happy, or happy enough, with that typed section there under the heading ‘Reasons for the application’. Are you happy with that?
APPLICANT: ---Yes. Yes.’[13]
[12] R1, p 5.
[13] Transcript, p 6, lines 1-19.
The Applicant’s cross-examination
The Applicant’s cross-examination commenced with him confirming his personal antecedents such as his date and place of birth.[14] He confirmed that his biological mother and father were not all that involved in his upbringing. In terms of that upbringing he said he was cared for by ‘Firstly by grandmother and then passed around a bit amongst family member a little bit by my mother. Don’t’ know who my father is.’[15] He confirmed that although he first came to Australia in 1994 when he was about 10 years of age, it was in August 2005 that he came to this country to actually reside here at which time he was 21-22 years of age. He said that he came to reside here by himself.[16]
[14] Ibid, p 8, lines 35-38.
[15] Ibid, lines 43-44.
[16] Transcript, p 9, lines 9-17.
He found work upon arrival here in August 2005 and that he spent ‘Roughly a few years’[17] working in the financial services sector. Due to liquidation of the financial services company that employed him in Australia, the Applicant did in 2011, leave Australia and returned to New Zealand for about two and a half years. He found it difficult to find work in New Zealand and eventually returned to Australia in 2013. His reason for returning was due to a difference in the level of wages paid for remunerative employment in New Zealand compared to Australia:
‘MR BURNHAM: Why did you come back?
APPLICANT: ---Because it was just – the wage difference in New Zealand to here, it was just – it was – yes, it’s financially like – you could do the same job back there but get paid like half the wage pretty much. And that was in all industries, not just any particular industry. So, yes.’[18]
[17] Ibid, line 24.
[18] Ibid, lines 42-45.

Upon his return to Australia, the Applicant said he found some work in the financial services sector but that he was not able to hold down a position for any lengthy period describing it as ‘on and off employment’.[19]
[19] Ibid, p 10, line 2.
The Applicant was then asked questions about his offending history. He was taken to an incident described in the material that occurred on 30 March 2015. Specifically, this incident is summarised in an NSW Police Facts Sheet. He agreed that this summary correctly records his apprehension for driving a motor vehicle while never holding a valid driver licence to do so.[20] He also confirmed that this facts sheet accurately records that at the time of his apprehension for this traffic offence, he was found in possession of one fifth of a gram of methylamphetamine. The Applicant confirmed that he agreed with the contents of this document including where it mentioned that he had taken ‘Ice’ the day before.[21]
[20] Ibid, lines 20-21.
[21] Ibid, lines 23-31.
He recalled being sentenced for this offending and being placed on a good behaviour bond for a 12-month period. He further confirmed and agreed that he breached the terms of this good behaviour bond by failing to meet the reporting requirements it stipulated.[22] The Applicant further confirmed that he also breached the terms of this bond by failing to undertake any of the drug or alcohol counselling it compelled him to undertake.[23]
[22] Transcript, p11, line 40.
[23] Ibid, p 12, lines 1-2.
The next incident to which the Applicant was taken occurred on 14 October 2016. The circumstances of this incident are summarised in an ‘Agreed Statement of Facts’ that appears in the material.[24] The Applicant was able to record the content of this document and was also able to confirm that it was signed by him on 31 October 2017.[25] The Applicant confirmed on the day of this incident that he was with a Mr Peter Cole whom the Applicant described in these terms:‘…..well, we kind of like family friends, sort of, ….we kind of bumped into each other through, like – well , through criminal circles, really, to be honest.’[26]
[24] R3, pp 182-186.
[25] Transcript, p 12, lines 13-14.
[26] Ibid, lines 19-21.
The Applicant recalled (as is recounted in the abovementioned Statement of Facts) that he was in the passenger seat of a black Lexus motor vehicle and that Mr Peter Cole was the driver. The Applicant confirmed there was a .22 calibre Winchester rifle in the car. His evidence was that while he and Mr Cole were in the car, police following their black Lexus activated their sirens as a means of apprehending them. The Applicant agreed that Mr Cole refused to pull over and, instead, increased his speed in a bid to avoid seizure and / or interception by the police. A police pursuit of their black Lexus then ensued.
During this pursuit, the Applicant confirmed he threw a number of items out of the window of the black Lexus. He told the Hearing that the pursuit ended as a result of Mr Cole causing the black Lexus to crash into a parked police vehicle. As police approached the crashed and now-stationary black Lexus, the Applicant confirmed he threw a bag from the vehicle.[27] He acknowledged that the bag he threw from the vehicle contained methamphetamine. He also confirmed there were other items in the vehicle and that some of those items comprised white re-sealable bags which contained ‘…heroin, ecstasy tablets, cannabis, and-yes-a number of syringes, throwing knives, electronic scales and steroids as well, I believe.’[28] In terms of what else he threw from the vehicle during the police pursuit, the Applicant said: ‘I don’t recall throwing the electronic scales. I did throw the firearm as well as the 25.8 grams of methamphetamine.’[29]
[27] Ibid, p 13, lines 30-31.
[28] Transcript, p 13, lines 39-41.
[29] Ibid, lines 44-46.
It was suggested to the Applicant that the drugs in his possession were for the purpose of supplying those drugs to others. He vacuously sought to suggest that (1) he was merely a passenger in the black Lexus being pursued by police; (2) that he was only ‘in possession’ of those drugs because he had to physically take possession of them in order to throw them out of the vehicle during the pursuit; (3) he was not charged with ‘supply’ but with ‘deemed supply’; and (4) that his plea of guilty to this offending was a ‘…plea of convenience or something….’. Because of these factors, the Applicant told the Hearing he had not committed any ‘supply’ offence despite ultimately accepting he was charged with ‘Supply prohibited drug.’ It goes without saying that this evidence should be rejected in its entirety:
‘MR BURNHAM: Okay. And you would accept, wouldn’t you, that at the time you had those drugs in your possession for the purpose of supplying them to others?
APPLICANT: ---No. The reason I got charged with deemed supply is because the drugs that were in the car, when I grabbed them to throw them out the window I had to take possession of them in order to throw them out. So, it was – I was charged with deemed supply. I still maintain the drugs in that vehicle – because that vehicle didn’t belong to me – I was just a passenger in it. So, I did have to sign what they call a – I can’t remember the legal term, but I did have to make adjustments to the statement of facts saying that I had the methamphetamine in my possession for a while before discarding it in order to get charged with deemed supply, possession, such and such, to get sentenced because I was sitting in remand for 14 months before – it was – I think it was called a plea of convenience or something but – yes. But, I didn’t have those drugs in my possession with the intent to sell them, but I did get charged with deemed supply.
MR BURNHAM: Yes. But, as you say, you were charged with supply?
APPLICANT: ---Yes’[30]
[30] Ibid, p 14, lines 15-31.
The Applicant told the Hearing that he recalled being sentenced for this offending at the Lismore District Court on 14 December 2017. He specifically recalled the learned sentencing Judge[31] telling him these things during the sentencing hearing:
‘The order of the court is you are sentenced to two years imprisonment but that will be served by way of an intensive correction order. That sentence will commence today. There are mandatory conditions, Mr Jattan are you listening very carefully, because if you breach them Corrections will deal with you, not me. You are to be of good behaviour and not commit any offence, no drugs at all. Zero tolerance of drugs.’[32]
[My emphasis]
[31] Her Honour Judge Wells.
[32] R1, p 46.
He confirmed that pursuant to the terms of the Intensive Correction Order (‘ICO’) imposed on him on 14 December 2017, he did engage in some counselling and other rehabilitative interventions. The material contains reference to his completion of, or participation in, the following interventions aimed at lowering his recidivist risk:
‘Response to intensive correction order
Since Mr Jattan's release from Grafton Correctional Center on 14/12/2017 he completed positive behaviour interventions addressing addictions, high risk environments, impulsivity and achieving goals. He completed EQUIPS Foundation program in 2018 and was receiving ongoing psychology sessions with his psychologist on a weekly basis. Supervision was suspended on 25 February 2019 due to receiving a low-medium risk rating of reoffending (LSI-R).’[33]
[33] R3, p 140.
Despite (1) the imposition of a non-custodial sentence on 14 December 2017; and (2) his completion of certain rehabilitative interventions pursuant to the ICO, the Applicant was, on 14 November 2019, re-arrested for:
·supply prohibited drug >= large commercial quantity Si;
·participate criminal group contribute criminal activity T2;
·acquire firearm no permit not prohibited firearm/pistol T2.[34]
[34] Ibid, p 139.
The Applicant was taken to the relevant ‘Agreed Facts’ referrable to this fresh offending which appears in the material.[35] He confirmed:
·the signature at the end of this document was indeed his signature;[36]
·that the following summary of his further unlawful conduct contained in the ‘Agreed Facts’ was a fair summary of what occurred:[37]
‘1. The offender James JATTAN is part of a drug supplying distribution network in the Grafton and Coffs Harbour region. Between 29 August 2019 and 14 November 2019 JATTAN along with his co-offenders co-accused 1 and co-accused 2 sourced and purchased substantial quantities of methylamphetamine from an upline supplier in Sydney and then transported those quantities to the Grafton area and surrounds in-order to sell them to downline street level suppliers and other users.’[38]
·that the total amount of methamphetamine supplied over the period 29 August 2019 and 14 November 2019 was 1.542 kgs;[39]
·that contemporaneous with this offending, he purchased a .22 calibre Rimfire rifle which he said was ‘…basically for protection…it’s not uncommon for ….people who are in that sort of scene or business to be threatened or approached by other individuals trying to harm them or rob them, sort of thing. So, it was-yes-purely for protection’;[40]
·that he was using the drug ‘Ice’ during this period of his offending;[41]
·that during the time of his commission of those fresh offences (August to November 2019) he was still subject to the terms of the ICO imposed on his (in lieu of actual custodial time).[42]
[35] R3, pp 224-227.
[36] Transcript, p 17, line 5.
[37] Ibid, line 21.
[38] R3, p 224.
[39] Transcript, p 17, lines 25-26.
[40] Ibid, lines 32-35.
[41] Ibid, line 37.
[42] Ibid, lines 42-43.
The Applicant was then taken to a couple of documents he has prepared and lodged with the Respondent at various stages of this proceeding. The first of those documents to which he was taken comprises his application to this Tribunal giving rise the instant Hearing. There, the Applicant says:
‘I am just asking for the decision to be reviewed so I can have another chance at trying to continue to do so in a lawful and positive way, as I have shown that I can do and have done previously. I know with the knowledge I have gained and experiences I have been through with Incarceration and currently Immigration Detention that I am well equipped to resume a life in the Australian community, all I ask for is the chance to do so.’[43]
[43] R1, p 5.
The second of those documents to which he was taken comprised his PCF where he says: ‘Please give me another chance at redemption here in Australia.’[44] It was squarely put to him in cross-examination that the Good Behaviour Bond imposed on him 2015 and the ICO imposed on him in 2017 (both in lieu of actual custodial time) did each represent a second chance for him to remain in the Australian community and to live a law-abiding life but that he spurned both of those second chances. He provided no credible response to this suggestion.[45]
[44] R1, p 54.
[45] Transcript, p 21, lines 24-34.
The Applicant was then taken to some incidents that occurred during his time in corrective custody. The first of those incidents which the Applicant recalled[46] occurred on

10 November 2020. The relevant ‘Incident Details’ document appears in the material and says the following:
‘Approximately 1140 on Tuesday 10/11/2020 a Code Black was initiated in NH1 Yard as inmates [the Applicant] Inmate [E] and inmate [W] were assaulting Inmate [M] in the middle of NH1 Yard.
It was ascertained that the inmates were carrying out the assault as they were of the belief that his crimes were of a sexual nature towards minors.
All three inmates were accepting of their behaviour and have been secured in cell pending charges.
Inmate [M] was transferred to NH5 for his own safety and protection at his own request.’[47]
[46] Ibid, p 22, line 10.
[47] R3, p 63.
The second incident which the Applicant also recalled[48] occurred on 26 February 2021. The relevant ‘Incident Details’ document appears in the material and says the following:
‘At approximately 1500 hrs on 26th February 2021 a code blue and black was activated by staff in NBH1 as a fight had broken out in the yard area outside unit2A and 2B.
Staff attempted to intercept and control the situation however for the good order and security of all inmates and staff Chemical Agent was deployed by onsite ERT Members to disperse the crowd of inmates.’[49]
[48] Transcript, p 22, line 11.
[49] R3, p 67.
The Applicant agreed this ‘Incident Details’ document confirmed he had been found ‘guilty’ of an incident in custody[50] which he explains in terms of ‘I got involved in the scuffle and I assaulted another inmate’ and that the jail administrators had to deploy a chemical agent in the form of ‘tear gas’ and ‘pepper spray’ to gain control of the situation.[51]
[50] Transcript, p 24, lines 16-17.
[51] Ibid, line 20.
It was squarely put to the Applicant that these ‘Incident Details’ reports are strong indicators that he is not serious about moderating his conduct. He unconvincingly sought to suggest that prison life does not always allow an inmate to live an anonymous life in custody and that sometimes forceful and assertive conduct is required to (1) avoid being the recipient of harm or (2) to otherwise being placed in protective custody in order to avoid such harm. This evidence must be entirely rejected:
‘MR BURNHAM: All right. I’m going to put another proposition to you, Mr Jattan, and you can agree or disagree. But what I say that material suggests is that you aren’t serious about addressing your conduct. Do you agree?
APPLICANT: ---No. I disagree.
MR BUNRHAM: Okay. Why do you disagree?
APPLICANT: ---Well, you have to understand in prison it’s different to you – sometimes you can’t just put your head down and mind your own business. It doesn’t work like that. It doesn’t work like that, no matter what people say, keep to yourself, this or that. The reality of it is - is you can’t unless you want to end up living in protection or being beaten. Like, that’s the simple reality of it. I know that doesn’t justify it, or I’m not saying it does. But that’s the only way I can explain it really.’[52]
[52] Ibid, p 24, lines 22-32.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraphs 8.1.1 considerations
The language in the chapeau to paragraph 8.1.1(a) of the Direction refers to unlawful conduct that is viewed ‘very seriously’ by the Australian Government and the Australian community. There is no requirement to get into the semantics of whether any of the Applicant’s unlawful conduct in Australia falls within the auspices of sub-paragraphs 8.1.1(1)(a)(i), (ii) or (iii). This Applicant has been involved in (and convicted for) the distribution of illicit drugs into our community. His conduct can be safely found to have serviced and maintained a market for those illegal substances. His conduct in being responsible for the supply of such substances did, without question, give rise to an economic incentive in others to manufacture and/or import and/or distribute those substances.
The Applicant was not a minor player in the criminal enterprise in which he was involved. He was no small-time street dealer working for himself who was supplying his own short list of customers. He was clearly part of a larger and organised criminal enterprise. The level of his involvement compelled him to carry a firearm; to prefer being the subject of a police chase rather than being apprehended and to being found in possession of a quite significant amount of illicit drugs and cash. The chapeau to paragraph 8.1.1(1)(a) of the Direction provides that conduct can be found to be very serious ‘without limiting the range of conduct’ that is being looked at by a decision-maker. In other words, for conduct to be found to be very serious, it does not have to fall into the auspices of sub-paragraphs 8.1.1(1)(a)(i), (ii) or (iii).
The Applicant’s history of offending in the realm of supply of illicit drugs and in the possession of unauthorised or prohibited firearms can be safely found to be very serious. I so find.
With particular reference to paragraph 8.1.1(b) of the Direction, it can be safely found that none of the Applicant’s conduct falls within the auspices of sub-paragraphs 8.1.1(b)(i) and (ii). While the Applicant has been involved in certain violent conduct during his time in criminal custody, there is no record of him committing a crime or otherwise being the subject of any conviction resulting from any offending during his time in immigration detention pursuant to sub-paragraph 8.1.1(b)(iv). With specific reference to sub-paragraph 8.1.1(b)(iii), I have had regard to the nature of the Applicant’s conduct for which he was convicted and sentenced in August 2021. Such conduct could, to my mind, safely grounds a finding pursuant to s 501(6)(c) of the Act that the Applicant’s past and present criminal conduct would render him to be not of good character. I am of therefore of the view that this sub-paragraph facilitates a finding that his conduct has been at least ‘serious’ (as per the chapeau to paragraph 8.1.1(1)(b)) but more likely ‘very serious’.

Sub-paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(a)any violent offending he may have committed against women or children;[53]
(b)acts of family violence;[54] and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[55]
[53] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[54] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[55] Paragraph 8.1.1(1)(b)(i) of the Direction.
None of the Applicant’s offending falls within the auspices of sub-paragraph of 8.1.1(1)(c). This means that all of the sentences imposed on him can be taken into account for the purposes of this sub-paragraph. On two separate occasions, judicial sentencing officers have sought to impose either a head custodial term or an ICO with a duration of two years or more consequent upon the Applicant’s convictions for offending in the realm of illicit drugs. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offending.[56]
[56] PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]; followed in Lafaele and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2827.
I agree with the two submissions made by the Respondent.[57] First, the fact that the sentence imposed on the Applicant at the Lismore District Court on 14 December 2017 was ordered to be served by way of an ICO does not detract from the seriousness of the Applicant’s offending. One need look no further than the sentencing remarks of the learned sentencing Judge (Her Honour Judge Wells) who noted that ‘…I am satisfied…that no penalty other than imprisonment is appropriate…’[58] Second , that the Applicant’s conviction for ‘Supply prohibited drug > = large commercial quantity – SI’ is punishable by imprisonment for life which is a clear indication of the seriousness in which this offending is regarded by this country’s law making and judicial sentencing apparatuses.[59]
[57] See R2, p 8, [31].
[58] R1, p 46.
[59] Sections 25(2) and 33(3)(a) of the Drug Misuse and Trafficking Act 1985 (NSW).
Sub-paragraph 8.1.1(1)(d): two questions arise for consideration. The first involves an assessment of the frequency of the Applicant’s offending. The Applicant has a criminal history that, in sentencing terms, runs from January 2010 to August 2021. During this period he has convictions for 14 offences that were dealt with at six separate sentencing episodes. He has therefore offended at the rate of approximately 1.5 offences for the duration of his criminal history. He has appeared before lawful authority on at least six of the 11 years of his criminal history. I am satisfied that the Applicant’s offending has been frequent.
The second question is whether the offending betrays any trend of increasing seriousness. I have recounted the nature of the Applicant’s offending as was revealed through his oral evidence ventilated at the instant Hearing. There is an undeniable trend of increasing seriousness to this offending. His convictions in 2015 and 2016 were for relatively minor drug possession, traffic offending and one conviction for being in possession of property suspected of being stolen. There follows a very significant escalation in the seriousness of his offending culminating in his respective convictions for drug supply and firearms offences in December 2017 and August 2021 respectively.
Both the frequency of the Applicant’s offending and its undeniable trend of increasing seriousness militate in favour of a finding that his offending has been of a very serious nature. I so find.
Sub-paragraph 8.1.1(1)(e)
: two cumulative effects can be readily gleaned from the Applicant’s offending. First, his involvement in the supply of drugs into the Australian community has most definitely had the capacity to very seriously and even catastrophically affect the lives of consumers of those substances together with the lives of those around those consumers / addicts who very often have to deal with the impact of illicit substance addiction at both an individual and family level. We are all too familiar with

Government-sponsored campaigns about the often dreadful outcomes arising from the consumption of illicit drugs in our community.
Second, the Applicant’s conduct has consumed more than its fair share of the community’s law-enforcement and judicial sentencing apparatuses. As mentioned, the Applicant is no small-time dealer in illicit drugs supplying relatively small volumes to a small clientele. He was apprehended with 1.542 kgs of methamphetamine as a result of a car chase with police. That car chase only ended when its driver collided with a parked police vehicle. The Applicant’s participation in this drug supply enterprise compelled him to be armed which is an indication of the extent of his involvement in this unlawful activity.
These two cumulative effects discernible from the Applicant’s conduct both militate in favour of a finding that the nature of his unlawful conduct in Australia has been very serious. I so find.
Sub-paragraph 8.1.1(1)(f): in September 2013 on the occasion of his most recent arrival back into Australia, the Applicant was required to complete the usual and necessary incoming passenger card a copy of which appears in the material.[60] This card asked him ‘If you are NOT an Australian citizen, Do you have any criminal conviction/s?’ to which the Applicant replied with ‘No’. This answer is clearly incorrect because as of September 2013, the Applicant had complied two convictions in this country. He provides no reason for concealing these convictions in the incoming passenger card. This sub-paragraph 8.1.1(1)(f) must thus be found to militate in favour of a finding that the Applicant’s unlawful conduct in this country has been very serious. I so find.
[60] R1, p 74.
Sub-paragraphs 8.1.1(1)(g) and (h)
: as best as I understood the material, there is no reference to any written formal warning to the Applicant about the consequences of him committing further offences in terms of his visa status to remain here. Likewise, there is no reference to his commission of any offence in another country. Both of these

sub-paragraphs should be put to one side and rendered neutral for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have sought to apply each of the relevant sub-paragraphs contained in paragraph 8.1.1(1) of the Direction to the evidence before me. I am satisfied that the sub-paragraphs applicable to the evidence before me do safely lead me to the conclusion (and finding) that the totality of the Applicant’s unlawful conduct in this country can be found to be very serious. I so find.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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 of it being repeated may be unacceptable.
Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the 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 the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
There is little to cavil with the proposition (and finding) that were this Applicant to re-commit any of his unlawful conduct in the realm of the supply of illicit drugs, serious and significant harm would be occasioned to the Australian community. I am of the view that the Applicant’s offending in this regard attracts the operation of paragraph 8.1.2(1) of the Direction such that it is safe to find that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In particular, I am satisfied that the harm that would be caused by the Applicant’s re-commission of unlawful conduct involving the supply of illicit drugs is so serious that any such risk may be unacceptable to the Australian community.
Any further unlawful conduct by the Applicant in the realm of supplying illicit drugs would result in serious and significant physical, psychological and potentially catastrophic harm to end-users of those substances. Significant harm and adverse impacts would also be experienced by family members and / or carers who are compelled to live with the social impact of a person’s addiction to illicit drugs. The supply of illicit substances into our community would also engage and consume more than its fair share of the community’s law enforcement, judicial sentencing and healthcare apparatuses.
Were the Applicant to recommit any of his offending around the possession of unauthorised firearms and to not otherwise safely store a weapon could place the wider community at risk of physical harm. Since the very tragic circumstances of Port Arthur in March 1996, the availability of firearms to the general community was, quite rightly, very significantly regulated. Firearms are difficult to acquire in Australia for a reason yet on two separate occasions, such has been the nature of this Applicant’s offending that he has felt a compulsion to arm himself with .22 calibre rifles as part of his participation in a drug supply enterprise.
Were the Applicant to re-commit any of his offences involving the ownership and / or operation of a motor vehicle, it could quite realistically result in harm to other road users. He has at least two convictions for driving a motor vehicle while never being licensed to do so. He has another traffic conviction for ‘Not stop at stop line at red arrow.’ While the extent of his traffic offending may not be remarkable, it is indicative of a person who does not respect the rules and regulations governing the ownership and / or operation of a motor vehicle on Australian carriageways.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s evidence: what he told others
While being cross-examined, the Applicant was taken to a particular document in the Respondent’s Tender Bundle. [61] This document comprised a Case Note Report prepared by a Ms Renee Cotter. Ms Cotter prepared this report following a meeting she had with the Applicant for the purposes of conducting a PARRCC[62] assessment. The Applicant recalled his meeting with Ms Cotter at or about the date of her report (3 September 2021).[63] The following portion of Ms Cotter’s report was read out to the Applicant:
‘He advised case management he first started using cannabis at the age of 13, before moving on to use methamphetamines regularly. By his 20's, James advised he was using same up to "one ball a day". James added here that his use "got out of control" and expensive, leading him to offend to fund his habit. James has a lengthy criminal history; he advised case management he believes at this stage he will return to his criminal lifestyle and drug use upon release from his current sentence.
…..
When asked about his hope for his future, James appeared unable to list any goals he has; he stated his not knowing about his visa situation makes this difficult. Despite this, James remained unable to list any goals he has previously had either. James was unable to list any goals and did not appear driven to do so- CMO [Case Management Officer] encouraged him to consider things he might want to achieve in his future. James has a long history of similar offence patterns and was noted to state he intends to return to his previous lifestyle, with no apparent drive to change.’[64]
[My emphasis and underlining]
[61] R3, pp 46-47.
[62] Planning for Adjustment, Responsivity, Reintegration, Criminogenic Needs and Communication.
[63] Transcript, p 22, lines 29-32.
[64] R3, p 46.
The Applicant was asked whether the above-quoted portion from Ms Cotter’s report represented a fair assessment of where we he was in March 2022. The following transpired between the Applicant and the Respondent’s representative:
‘MR BURNHAM: Is that a fair assessment of where you were in March 2022?
APPLICANT: ---Yes. By the looks of it. Yes’[65]
[65] Transcript, p 23, lines 30-31.
The Applicant was also taken to a further Case Note Report, this time prepared by Mr Carl Sackel on 9 July 2022. In particular, the following portion of Mr Sackel’s report was put to the Applicant:
‘Received an inter centre letter from JATTAN to an inmate at MSPC Area 1. JATTAN writes 'I got 9 months tilI go Villawood. lol. I feel nervous about it but I heard Villawood is alright I still waiting for my appeal so hopefully I kick a goal so I can get back to selling Ice & fucking junkie girls. Hahahaha'’[66]
[My emphasis and underlining]
[66] R3, p 52.
The Applicant recalled saying the above to Mr Sackel.[67]
[67] Transcript, p 23, line 43.
The Applicant’s evidence: rehabilitative courses
The Applicant was then taken to whatever rehabilitative courses he had participated in or completed as referred to in the application he lodged with the Tribunal giving rise to the instant Hearing.[68] In particular the Applicant said those courses comprised ‘EQUIPS Drug Addiction, EQUIPS Foundation, EQUIPS Anger Management as well as a SIPS Violent behaviour class.’[69] He was asked when he completed those courses and he said that he did so ‘at various times.’[70] He further confirmed that he completed these courses ‘…between both of my terms of incarceration so 2016 up until my release 2023.’[71]
[68] R1, p 5.
[69] Ibid.
[70] Transcript, p 24, line 47; p 25, line 1.
[71] Ibid, p 25, lines 12-13.
The Applicant’s evidence about completion of these courses seemed confused. On the one hand he suggested that ‘…I did sit through all of those [courses].’[72] Yet on the other hand he agreed that he only partially completed some of the courses.[73] Despite the state of the evidence around the extent of the Applicant’s completion of, or participation in, those courses, he said the following in cross-examination:
‘MR BURNHAM: Yes. And after completing that course you went on to reoffend didn’t you?
APPLICANT: --- Yes’.[74]
[72] Ibid, line 3.
[73] Ibid, lines 15-26.
[74] Ibid, lines 28-29.
The Applicant’s evidence: what he said during his oral evidence
During the course of his evidence the Applicant made some surprising, perhaps even remarkable, concessions about his prospects of success in the instant application. I am especially mindful of the reality that the Applicant was self-represented and that one must approach what is said by a self-represented litigant with some level of caution. I accept that the Applicant may not have a detailed understanding of the methodology of the Direction and/or the jurisprudence around it. But what was noticeable during the Hearing was that after a portion of the evidence was put to him, he had little or nothing to say in response to it. Indeed, he seemed forthright enough to suggest that if he were the decision-maker deciding his own case, he would not give himself a visa to remain here.
The first example involved the Applicant saying he did not disagree with any of the facts or circumstances of his offending that had been put to him:
‘SENIOR MEMBER: Are you saying – just to cut across you there, Mr Burnham. Sorry. Are you saying, Mr Jattan, that you don’t disagree with what’s being said by the Minister? Is that what you’re saying?
APPLICANT: … I mean, after seeking like – if I was – so, if I was to read this case about someone else I wouldn’t give them a second chance either – a third change, or whatever it is….. After seeing it all laid out in me – in front of – like, in black and white, like I’ve had time to read over it and that, I can’t disagree with anything that’s been said, like...as much as I would like another chance in Australia I do agree that I definitely don’t deserve one.’[75]
[My emphasis and underlining]
[75] Transcript p 19, lines 1-11; lines 15-16.
The second example occurred when the Respondent’s representative asked him why his recidivist risk now would be any different to what it was at the time of his incarceration given that he went on to reoffend after completing or participating in the rehabilitative courses he referred to:
‘MR BURNHAM: So, what do you say is different this time? Why should the tribunal believe that if you get another chance things will be any different?
….
APPLICANT: But that’s all I can say, is – like, if you’re looking at my record obviously it doesn’t look good. I know I don’t deserve another chance even though I would like one. But that’s all before the tribunal to make their decision. I can’t disagree with anything that you’ve said today because, as I mentioned earlier, it’s all here in black and white. Some of it I did not even recall, but I do obviously know it’s – I was there or I participated in that sort of thing, because I’ve signed it. And, yes, like I said seeing it all in black and white makes it – paints a pretty crystal – crystal clear picture, anyway, of - yes – of the offences and stuff I’ve been involved in here, if that makes sense. Yes.’[76]
[My emphasis]
[76] Transcript, p 25, lines 31-32; lines 37-46.
Findings about risk
The state of the evidence points to no other safe finding except that the Applicant’s recidivist risk is now no different to what it was at the time of his most recent removal from the Australian community. These are my reasons for this finding:
·consistent participation in drug supply enterprise: with the exception of some questionable and self-serving evidence about him working in the financial services industry, it seems clear the Applicant’s time in Australia has been dominated by an involvement in organised criminal activity around the supply of illicit drugs. As found at least by one judicial sentencing officer, he has not been a small-role player in this activity. The level of his involvement has caused him to (1) feel compelled to go armed in the community; (2) refuse to follow the requirements of police who were making enquiries into his conduct and to willingly engage in a police car chase that only ended by the crashing of the black Lexus vehicle he was into a parked police vehicle; (3) be in possession of a substantial amount of methamphetamine; and (4) be in possession of a not insignificant amount of cash;
·little or no rehabilitation: the Applicant accepted that he was taking ‘Ice’ at the time he committed his most recent offences. While there is a modicum of his participation in rehabilitative courses, there is little or nothing to suggest that he has experienced any rehabilitative effect from those courses or, indeed, that this Tribunal can, in any way, safely find that the Applicant’s predisposition to abuse methamphetamine is under any sort of remedial management and control such as to speak positively to any recidivist risk he now represents;
·the Applicant’s behaviour in prison:
while this conduct was put to him in

cross-examination does not automatically fall within the auspices of any componentry of the Direction, it seems clear the Applicant has an unresolved predisposition towards violence in circumstances he feels it appropriate. He was part of a group in the prison that bashed a person they thought was serving time offences against minors. He was of the view that one’s safety in prison effectively amounted to a situation of ‘bash others before they bash you.’ This predisposition towards violent solutions to issues confronting him – especially in the circumstances of the closed environment – does not at all speak well to his current recidivist risk. If he is prepared to be violent in prison, there is every likelihood he will be violent in the much less regulated environment of the community;
·what others have observed about the Applicant: in her report, Ms Renee Cotter confirmed that the Applicant is unable to list any goals he may have if returned to the community and that he was otherwise not driven to creating any such list. Concerningly, Ms Cotter noted that the Applicant ‘..has a long history of similar offence patterns and was noted to state he intends to return to his previous lifestyle with no apparent drive to change.’ In his report, Mr Sackel noted the Applicant telling another inmate of his intention to try and recover his Visa to remain in Australia ‘…so I can get back to selling ice and fucking junkie girls. Ha ha ha ha’; [My emphasis]
·what the Applicant makes of his own case: the Applicant conceded that after the facts and circumstances of his offending being put to him ‘… in front of me…in black and white…I can’t disagree with anything that’s been said…’ and that ‘…as much as I would like another chance in Australia I do agree that I definitely don’t deserve one.’ And further, ‘….if you’re looking at my record obviously it doesn’t look good. I know I don’t deserve another chance even though I would like one.’ [My emphasis]
Assessment of risk

I am of the view that this Applicant represents an unresolved and otherwise unknown level of recidivist risk. The only safe finding is that his current level of recidivist risk is now no different to what it was at the time of his most recent removal from the Australian community.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the totality of the Applicant’s conduct to date has been very serious;
(b)I have made findings about the harm that would ensue in the event the Applicant reoffended in any of the realms in which he has previously offended. Most significantly, with reference to the Applicant recommitting offences in the realm of supplying illicit drugs, I have found this would result in significant physical, psychological and potentially catastrophic harm to end-users of those substances. Significant harm and adverse impacts would also be experienced by their family members and / or carers who are compelled to live with the social impact of a person’s addiction to illicit drugs;
(c)in terms of recidivist risk, I have found that the Applicant represents an unresolved and otherwise unknown level of recidivist risk and that his risk of reoffending is now no different to what it was at the time of his most recent removal from the Australian community back into which he now seeks re-admission.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a very heavy level of weight against revocation of the mandatory cancellation of the Applicant’s Visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
I agree with the Respondent’s contention to the effect that there is nothing in the material to indicate any of the Applicant’s offending involved family violence.[77] I will allocate neutral weight to this Primary Consideration 2.
[77] R2, p 10, [45].
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. There are four requisite considerations to be addressed in this paragraph 8.3. I will address each in turn.
The Applicant’s evidence
At the Hearing, the Respondent’s representative questioned the Applicant about the extent (if any) of the Applicant’s ties to Australia. It transpires that whatever ties he may have to this country are very minimal. First in relation to any family he may have in Australia, the Applicant said he was estranged from his family and had little to do with them. Second, while there was some vague reference about the Applicant having some kind of liaison with a ‘Ms Robyn Cole’ (apparently the sister of the abovementioned Peter Cole – the driver of the black Lexus involved in the police chase), he said he had little or nothing to do with her since going into immigration detention. Third, in terms of friends he may have in the community he said that most of those associates were involved in criminal activities and that he has not been in contact with them for a number of years. Fourth, that his relationships with people in Australia at present are less than minimal. It is worth recounting the Applicant’s evidence in full:
‘MR BURNHAM: Okay. Just moving to a different topic now. I know we’ve touched on it already, but do you have any family in Australia?
APPLICANT: ---Estranged family, yes. But no one that I’m in contact with regularly.
MR BURNHAM: Okay. So, who are they? You say you’re estranged from them?
APPLICANT: ---I believe – I’m not a hundred per cent sure but I believe one of my brothers may be in Melbourne, and I have cousins there also.
MR BURNHAM: Okay. Are you in contact with Ms Cole?
APPLICANT: ---No. Part of the – I think part of the conditions it was to cease contact – parole. I’m not sure. That was – are you talking about the last time I was out?
MR BURNHAM: No. Sorry. I’m just asking - - -?
APPLICANT: ---It was part of the parole conditions.
MR BURNHAM: I’m not necessarily asking you about your conditions. I’m just asking what your relationship with Ms Cole is like at the moment?
APPLICANT: ---Yes. I haven’t spoke to them in a while.
MR BURNHAM: And does that go for Mr Cole as well?
---(Indistinct).
Does that go for Mr Cole as well, Mr Peter Cole?
APPLICANT: ---Yes. I rarely spoke to them, yes. Since coming in detention, very rarely.
MR BURNHAM: Okay. Do you have any friends in the community?
APPLICANT: ---I do have friends in the community, but they’re all obviously friends that are not the friends parole would approve of or they’re not – I don’t know how you’d – they’re – it’s mainly people in the – that were involved in criminal activities. The friends I did know, once upon a time, whilst I was working at that, I have not been in contact with for a number of years.
MR BURNHAM: Okay. And is that why that none of them have provided statements in support of you?
APPLICANT: ---I guess that would be one of the reasons. Yes. As well as – sorry. I was going to say as well as like whilst I was on drugs I would’ve destroyed many of them relationships as well. So, that’d be another reason for them obviously either not knowing what my current situation is and not obviously stepping in to offer any sort of statement or support.
MR BURNHAM: Do any of them know that you’re undergoing this process, that you’re potentially going to be removed to New Zealand?
APPLICANT: ---I’m not quite sure to be honest. Like I said, it’s been a number of years. Like, it’s – yes – been easily over maybe seven years, close to eight years, since I’ve – yes.
MR BURNHAM: So, is it fair to say that your relationships with them are minimal at present?
APPLICANT:---Probably less than minimal to be honest with you. Yes.’[78]
[My emphasis]
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
[78] Transcript, p 26, lines 1-44.
The Applicant was asked about whether he had any family in Australia and I will presume this question did encompass immediate family. He confirmed that he was estranged from his family and that there was no one from his family with whom he was in regular contact. This component of paragraph 8.3 of the Direction does not assist the Applicant.
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to the Applicant’s child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
The Applicant does not have any child or children in Australia. This component of paragraph 8.3 of the Direction does not assist the Applicant.
Paragraph 8.3(3) Strength, nature, and duration of ties with any family or social links generally
In his oral evidence, the Applicant was taken to any other family or social links he may have in the Australian community but he said they were people involved in criminal activities and that he has not been in contact with them for a number of years. He described his ties to friends and social contacts in Australia as probably less than minimal. This component of paragraph 8.3 of the Direction does not assist the Applicant.
Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here
This component of Primary Consideration 3 requires me to look at the length of time the Applicant has resided in the Australian community and to take account of the following three elements:
(a)whether the Applicant has been ordinarily resident here during his formative years.[79] The Applicant first settled in Australia in 2005 when he was approximately 22 years old. He is presently 40 years old which means he has spent just over half his life in Australia. It is therefore not safe to find that this Applicant has been ordinarily resident here during his formative years. This component of paragraph 8.3(4) of the Direction does not facilitate the allocation of any weight to the Applicant’s ties to Australia because that he did not spend his formative years here;
(b)whether the Applicant has positively contributed to the Australian community during his time here.[80] As mentioned above, the Applicant has spent about half his life in Australia. While he spoke of participating in legitimate employment in the financial services industry in Australia he does not appear to have any other legitimate work history in this country. This is confirmed in his PCF.[81] It cannot be found that he has positively contributed to the Australian community. Likewise, his PCF has confirmed that he has made no positive community contributions during his time here.[82] This component of paragraph 8.3(4) of the Direction does not facilitate the allocation of any weight to the Applicant’s ties to Australia on the basis of any employment – derived or community – derived contributions he has made to Australia during his time here;
(c)can the weight allocable to the strength of the Applicant’s ties to Australia based on the length of time he has spent in the Australian community be lessened because (1) he did not spend his formative years here and (2) he began offending soon after arriving here?[83] With reference to the first question, I have already found that he has not spent his formative years here. With reference to the second question, he initially arrived here in 2005 as a 22-year-old and committed his first offence in this country in July 2010 as a circa 27-year old. Five years post-arrival in Australia is not ‘soon after arriving in Australia’. Taking into account that the Applicant did not spend his formative years here and that he did not begin offending soon after arriving here, this paragraph 8.3(4)(a)(iii) does not impugn the strength, nature and duration of the Applicant’s ties to Australia, assuming there are any such ties in the first place.
[79] Paragraph 8.3(4)(a)(i) of the Direction.
[80] Paragraph 8.3(4)(a)(ii) of the Direction.
[81] R1, p 67.
[82] Ibid, p 68.
[83] Paragraph 8.3(4)(a)(iii) of the Direction.
I am therefore of the view (and I find) that as a result of my analysis of the evidence around sub-paragraphs 8.3(4)(a)(i)-(iii) of the Direction, the Applicant’s ties to the Australian community must be found to be, at best, only slight having regard to (1) that he did not spend his formative years here; (2) that he did not begin offending soon after arriving here; and that (3) he has a very limited history of engagement in lawful remunerative employment in Australia and has made no community-derived contribution to this country.
Conclusion: Primary Consideration 3
I have referred to the four relevant components of this Primary Consideration 3. I am of the view – after having analysed the evidence relevant to each of those components – that the totality of the evidence points, at best, to a finding that this Primary Consideration 3 is of slight weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The material contains no reference to the Applicant having any connection with any minor children whose best interests may be impacted by his removal to New Zealand. I will put this Primary Consideration 4 to one side and allocate neutral weight to it for present purposes.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[84] The Direction further explains:
‘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 [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[85]
[84] Paragraph 8.5(3) of the Direction.
[85] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
1The 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.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country, which is evidenced by a significant number of breaches of the Australian criminal law. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not 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:[86]
(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.
[86] Paragraph 8.5(2) of the Direction.
It can be safely found that none of the Applicant’s offences fall within the auspices of paragraph 8.5(2)(a)-(f) (inclusive) of the Direction. However, I have found the Applicant’s offending in the realm of supplying illicit drugs has been so serious that the harm that would thereby be caused is so serious that any risk of him re-committing such offences would be unacceptable to the Australian community. I have little hesitation in finding that the extent of the Applicant’s offending in this country to date means the Australian community expects that the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[87]
(c)Australia will generally afford a higher level of tolerance towards criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[88]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;[89]
(e)the nature of a 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 a visa outcome that is not adverse to the non-citizen;[90] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[91]
[87] Paragraph 5.2(4) of the Direction.
[88] Paragraph 5.2(5) of the Direction.
[89] Paragraph 5.2(5) of the Direction.
[90] Paragraph 5.2(6) of the Direction.
[91] Paragraph 5.2(6) of the Direction.
In relation to sub-paragraph (a) of the immediately preceding paragraph [94], the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Class TY Subclass 444 Special Category (Temporary) visa until it was cancelled on 1 September 2021. This visa permits a citizen of New Zealand to remain in Australia indefinitely.[92] As the visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[93] Therefore this sub-paragraph (a) is not applicable to the Applicant.
[92] Regulation 444.511 of the Migration Regulations 1994 (Cth).
[93] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
In relation to sub-paragraph (b) of the abovementioned paragraph [94], the Applicant has resided in Australia from mid-2005 when he was 22 years old. He is currently aged 40 years. He has a minimal work history in Australia. He has fathered no biological children and has no other children in Australia to whom he is connected. His participation in, and contribution to, the Australian community he may have made during his time here (minimal though it may be) cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Direction.
In relation to sub-paragraph (c) of the abovementioned paragraph [94], I repeat that the Applicant resided in Australia since mid-2005 when he was aged 22. He is currently 40 years of age. He has spent just over half of his life in this country. This means that the Australian community has a higher than usual tolerance of criminal or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the abovementioned paragraph [94] I am of the view that the length of time the Applicant has spent here facilitates a slight raising of the community’s level of tolerance for his offending. I make this finding even though he did not spend his formative years in this country.
In relation to sub-paragraph (e) of the abovementioned paragraph [94], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his drug supply (and other) offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the Applicant’s offending in the realm of illicit drugs and the resulting harm from that conduct (thus far) has been of such a significant and serious magnitude as to dispel any applicable countervailing considerations.

In relation to sub-paragraph (f) of the abovementioned paragraph [94], I have found that while none of the Applicant’s offending is captured by any of the sub-paragraphs to paragraph 8.5(2) of the Direction. Be that as it may, I am of the view that the totality of his unlawful conduct in this country has been so serious that not even strong countervailing considerations in his favour would assist the Applicant. Therefore, my finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour.
Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [94] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the very serious nature of the Applicant’s offending, this Primary Consideration 5 compels a finding that the community expects that the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa. I so find.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a very heavy level of weight in favour of this Tribunal not exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
OTHER CONSIDERATIONS
Other Considerations (a): Legal consequences of the decision; (c): Impact on victims and (d): Impact on Australian business interests
I agree with the Respondent’s contention that the totality of the material before the Tribunal does not compel any ventilation or analysis of any of the three above mentioned Other Considerations (a), (c) and (d) of the Direction.[94] I will put these Other Considerations to one side and allocate neutral weight to each of them.
Other Consideration (b): Extent of impediments if removed
[94] R2, p 12 [55].
The Applicant’s evidence
During cross-examination the Applicant repeated his earlier evidence about not deserving a further chance to remain in Australia. This component of his evidence also made reference to the extent of any impediments he would face if removed to New Zealand:
‘MR BURNHAM: And just the very last sentence this time. It says there, ‘Please give me another chance at redemption here in Australia’. So, is it fair to say that what you’re asking the tribunal today is for another chance?
APPLICANT: ---That’s what I’m asking for, but I know I really don’t deserve it after seeing it all put in front of me in black and white. Like I said earlier with that third statement or letter I wrote, at the time I – like, I didn’t realise honestly until seeing it all in from of me, black and white, like once I received these, this stuff in here, like, I know I’ve signed, like I don’t even remember like that correction’s order and whatnot. So, like I know I don’t even deserve another chance, to be honest with you, and I even agree with the – I think it was something that [the Respondent’s representative] wrote about there’d be no problem with me obviously adjusting to a life in New Zealand, like there’s nothing holding me back, kind of thing. There’s no impediments or anything like that. Just – I don’t know, going through the realisation of it all, after reading it all in black and white which is – it’s like, you know, I’m – how can I not – I can’t not agree with what’s being said or what’s in front of me. So – yes.’[95]
[My emphasis and underlining]
[95] Transcript, p 18, lines 30-45.
Later in his cross-examination the Applicant was asked about what he would do if returned to New Zealand and he said: ‘…I have to complete some sort of mentoring. Without knowing what exactly those conditions are I couldn’t tell you what I can or can’t do, like what my- what I plan to do’[96] He was asked whether he had any family in New Zealand and whether he saw any real impediments to return into that country and he responded with the following:
[96] Ibid, p 27, lines 4-6.
‘MR BURNHAM: Do you have any family there?
APPLICANT: ---Family there? Yes. I do have family there but I haven’t spoken to them in longer than I’ve spoken to some of the friends I’ve had.
MR BURNHAM: Do you think they’d be willing to support you if you went back?
APPLICANT: ---No. And I wouldn’t want their support anyway.
MR BURNHAM: So, we touched on it before, but you went back to New Zealand after a few years, in 2013?
APPLICANT: ---Yes.
MR BURNHAM: And I think you said it yourself, but there’s no real impediments preventing you from returning to New Zealand, are there?
APPLICANT: ---No.’[97]
[My emphasis]
[97] Transcript, p 27, lines 9-20.
The Applicant was then taken to a reference in the material to the possibility of him having schizophrenia. His evidence was that he does not have those symptoms and is not being medicated for it:
‘MR BURNHAM: Something that I just wanted to explore with your that’s mentioned in some of the materials, there’s some reference to you having schizophrenia?
APPLICANT:---Yes.
….
MR BURNHAM: Okay. So, you don’t think you have it?
APPLICANT: ---No.
MR BURNHAM: And I know you’ve said just then that you were on medication while you were in custody for some period, but you’re not taking any medications now, are you, for it?
APPLICANT:---No. No.’[98]
[98] Ibid, lines 22-23; lines 35-39.
Finally, there followed this brief exchange between me and the Applicant:
‘SENIOR MEMBER: Thank you. (Indistinct words). Mr Jattan, any physical problems? Mr Burnham has covered psychological problems. Any physical problems, diabetes, anything like that? No physical issues?
APPLICANT: ---No physical issues, your Honour. No.’[99]
[99] Ibid, lines 43-46.
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a): the Applicant is 40 years of age and it seems clear that he is not suffering or experiencing any physical or mental health symptoms. The Applicant’s age and state of health are not impediments to him returning to New Zealand.
Paragraph 9.2(1)(b): the evidence has nothing to say about any substantial language or cultural barriers impeding the Applicant’s re-settlement in New Zealand. As previously noted by this Tribunal (differently constituted): ‘New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.[…].’[100] He is 40 years of age and spent the first 22 years of his life in New Zealand. He has also made return trips to New Zealand since settling here in mid-2005. The Applicant will not be impeded by any language or cultural barriers upon return to New Zealand.
[100] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, [101].
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in New Zealand. The Applicant has family in New Zealand but does not want any assistance from them in re-settling there even if they offered it to him. He will be entitled to the same publicly available healthcare as is available to other citizens of New Zealand. He refers to having engaged in remunerative employment in the financial services sector in Australia and there is little or nothing to suggest he will not be able to take whatever level of experience he has acquired in this field with him to New Zealand.
Findings about impediments
The Applicant has been forthright in his evidence about any impediments he would face if removed to New Zealand. In particular, he said :
·‘….there’d be no problem with me ….adjusting to a life in New Zealand, like there’s nothing holding me back kind of thing. There’s no impediments or anything like that’;[101]
·‘…MR BURNHAM: there’s no real impediments preventing you from returning to New Zealand are there? [THE APPLICANT]: No’[102]
[101] Transcript, p 18, lines 40-43.
[102] Ibid, p 27, lines 19-20.
I am of the view that this Other Consideration (b) confers a slight level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of slight weight in favour of revocation;
(c)impact on victims: is of neutral weight;
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a very heavy weight in favour of affirming the decision under review;
·Primary Consideration 2: is of neutral weight;
·Primary Consideration 3: is of a slight weight in favour of setting aside the decision under review;
·Primary Consideration 4: is of neutral weight;
·Primary Consideration 5: carries a very heavy weight in favour of affirming the decision under review;
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 1 and 5 are sufficient to outweigh the combined weights I have allocated to

Primary Consideration 3 and Other Consideration (b).
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by a delegate of the Respondent dated 16 August 2023 to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

……………[SGD]……………….
Associate
Dated: 9 November 2023

Date(s) of hearing: 19 October 2023

Applicant: Self-represented litigant

Counsel for the Respondent: Mr Matthew Burnham (Associate)

Sparke Helmore Lawyers
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

R1

Section 501 G-Documents

Various

8 September 2023

R2

Respondent’s Statement of Facts, Issues and Contentions

6 October 2023

6 October 2023

R3

Respondent’s Tender Bundle

Various

6 October 2023

Date(s) of hearing:	19 October 2023
Applicant:	Self-represented litigant
Counsel for the Respondent:	Mr Matthew Burnham (Associate)
Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
R1	Section 501 G-Documents	Various	8 September 2023
R2	Respondent’s Statement of Facts, Issues and Contentions	6 October 2023	6 October 2023
R3	Respondent’s Tender Bundle	Various	6 October 2023