JFPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2025] ARTA 275
•26 March 2025
JFPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2025] ARTA 275 (26 March 2025)
Decision and Reasons for Decision
Applicant: JFPT
Respondent: Minister for Immigration and Multicultural Affairs Tribunal Number: 2022/1189
Tribunal: Senior Member N Manetta
Place: Adelaide
Decision Date: 26 March 2025
Decision: The Tribunal affirms the decision under review.
...............................[sgnd]...............................
Senior Member N Manetta
Catchwords
MIGRATION – mandatory cancellation of visa – applicant fails character test – whether another reason to revoke visa cancellation – applicant a citizen of Portugal – applicant now 60 having lived almost all his life in Australia – applicant guilty of involvement in cannabis supply on a commercial scale – very serious offending – applicant has strong links to Australian community – impediments on removal – decision affirmed
Legislation
Migration Act, 1958 (Cth)
Cases
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ
[2021] FCA 92
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Statement of Reasons
This is an application by ‘JFPT’, a person whose name has been anonymised in the interests of confidentiality and to whom I shall refer as ‘the applicant’. The applicant seeks to have a decision of the respondent’s internal-review delegate, dated 3 February 2022, set aside. By this decision, the delegate affirmed the mandatory cancellation of the applicant’s visa that had taken place on 12 May 2020 under s 501(3A) of the Migration Act, 1958 (Cth)
(‘the Act’).1 The applicant’s visa was cancelled after his conviction of two serious offences in connection with the supply of a commercial quantity of cannabis. He received two concurrent sentences in relation to this offending, the longer sentence being four years and six months. Part of these sentences was required to be served on a full-time basis in jail. In these circumstances the initial cancellation of the applicant’s visa was required under s 501(3A) of the Act.
The applicant made a timely application for an internal review of the visa-cancellation decision. The internal-review delegate had two questions to address under s 501CA(4)(b) of the Act. First, the delegate had to consider whether the applicant passed the so-called ‘character test’ as defined by s 501(6) of the Act. Secondly, if the answer to this question was no, the delegate had to consider whether there was ‘another reason’ – that is, a reason apart from the applicant passing the character test – warranting the revocation of the cancellation decision. In this regard, the delegate was required to apply any direction issued under section 499 of the Act. The delegate applied Direction no. 90,2 then in force. Having weighed the various considerations required to be addressed under that direction, the delegate concluded that, on balance, they did not favour revocation of the cancellation decision. The delegate formally concluded that the statutory jurisdiction under s 501CA(4)(b)(ii) of the Act was not enlivened, and the delegate declined to take any action to set aside the decision under review.3
1 The applicant’s Resident Return visa was cancelled, and this cancellation entailed, by operation of law, the cancellation of the applicant’s permanent residency visa: see s 501F(3) of the Act.
2 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth) Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
3 The delegate’s decision and reasons appear at Ex R1, 17ff.
The applicant applied to the Administrative Appeals Tribunal (‘AAT’), this Tribunal’s predecessor, seeking a review of the delegate’s decision. The AAT affirmed the decision under review, but the AAT’s decision was the subject of a successful judicial-review application that led to a quashing of the decision and an order that the application to the AAT be determined according to law.4 A new hearing was conducted by me. It comprised a complete de novo hearing on the merits.
Like the delegate, I must address the two questions I earlier identified. There is no doubt that the internal-review delegate was correct to find that the applicant did not pass the character test. Section 501(6)(a) of the Act, when read in conjunction with subsection (7)(c), provides that a person does not pass the character test when he or she has been sentenced to a term of imprisonment of at least 12 months. That is the case here.
In respect of the second question, I must apply any direction issued under s 499 of the Act.
Since the delegate’s decision, the direction has changed. The current direction is Direction no. 110 (‘the Direction’),5 and I have applied it in my review.
TRIBUNAL’S TASK
In a case like this, the Tribunal hears the matter afresh on the evidence before it. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.6 It hears evidence and oral submissions and
4 The Federal Court’s orders were made by consent: Ex R1, 638-639. The AAT had taken into account certain convictions that it ought not to have taken into account as detailed in the Court’s order: see Ex R1, 638, [5(a)].
5 Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024).
6 See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51]. This decision concerned the Tribunal’s predecessor, the Administrative Appeals Tribunal, but the same principles apply to the Tribunal’s exercise of jurisdiction.
receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.7
STATEMENT OF CONCLUSION
I have decided to affirm the decision under review. I now set out the background facts and then my reasons for this conclusion.
BACKGROUND FACTS
The applicant was born in Portugal in 1965 and is a citizen of that country.8 He has recently turned 60 years of age. He arrived in Australia as a child aged six. He has not departed Australia since arriving as a child and so he has never revisited Portugal.
The applicant attended school in Australia and was educated to Year 9 level. After leaving high school, he had a number of jobs (principally labouring), and eventually worked as a cement renderer in his own business from 1999 until 2018 (when he was jailed).9 I accept that he worked hard and supported a family during this time. I shall describe his family relations in due course, but I note here that he has three sons, multiple grandchildren, a
7 This paragraph is one I routinely use in my decisions to explain the general decision-making approach of the Tribunal.
8 Some of the background facts concerning the applicant’s life are drawn from the applicant’s submission to the Department: Ex R1, 60ff.
9 Applicant’s submission: Ex R1, 73.
current long-term partner, and extended family. He also has an elderly mother, who is ailing in an aged-care facility, and who has had past mental-health crises.10
The applicant’s criminal record was before me.11 It begins early in his life. I believe, however, that I should ignore all parts of the record that relate to the applicant’s behaviour when he was under 18 years of age, now more than 40 years ago. They are not germane to the decision I must make in this case. Indeed, I have decided that I should have regard only to those offences that the applicant has committed from 2000 onwards, a period which still spans the last quarter century.
In the period since 2000, there have been very few appearances before the courts, and that is a significant matter to be weighed in the applicant’s favour. In 2006, the applicant was found guilty of an assault occasioning actual bodily harm. He appeared before the Wollongong Local Court in New South Wales and was fined $400. The offence appears to have been treated as a relatively minor matter (given the level of fine that was imposed). I note that this was the applicant’s first appearance before the courts in eleven years (i.e., since 1995).
In 2011, the applicant was found guilty in the Wollongong District Court of assault occasioning actual bodily harm and maliciously inflicting grievous bodily harm. Both offences related to a former relationship. This offending comprised two very serious assaults by the applicant upon a former partner on separate occasions. The applicant received sentences of 6 and 18 months respectively. The sentences marked the seriousness of the offending. The applicant was, however, judged suitable for an intensive
10 Ex R1, 348 [10].
11 Ex R1, 36ff.
correction order, and an order in that regard was made in respect of each charge. The applicant was not, therefore, required to serve his sentences in jail.12
I come now to the principal offending that led to the cancellation of the applicant’s visa. In describing the offending, I have relied upon, and have accepted, the sentencing remarks in the District Court that were before me in evidence.13
The applicant pleaded guilty to two related charges. The first offence concerned the supply by the applicant of 82.75 kilograms in total of cannabis leaf on 17 different occasions to his son and, through his son, to another man involved in the venture (not a family member), to whom I shall refer as ‘T’. Both the son and T were also convicted of offences in respect of their involvement in the enterprise.
The son had the idea of illegally supplying cannabis to willing purchasers in the community.
The applicant purchased cannabis from his own criminal contacts. The Court described the applicant as having the contacts, and as controlling the flow of cannabis both to his son, and through his son, to T.14
The Court found that the applicant used his skill and expertise to earn a profit both for himself and for his son. The Court also found that the applicant and his son had a ‘father and son business operation that they ran together for mutual benefit’ and that they ‘were seeking cash to lead a lifestyle that their other legitimate employment could not provide them with’.15
12 Ex R1, 52ff (transcript of sentencing hearing).
13 Ex R1, 42ff.
14 Ex R1, 47 [28].
15 Ex R1, 48 [35].
It is important to point out that the Court accepted that the applicant was motivated in part to help his son because his son was determined to engage in the criminal enterprise in any event, and the applicant wished, through his own active participation, to shield the son from the dangerous circles in which he might otherwise mix. This was not, however, accepted by the Court to be the applicant’s sole motivation.16 The Court found that the applicant was also ‘greedy for cash’.17 The Court found that the applicant ‘source[d] the cannabis’ for both his son, and through him, T.18 He used his own premises to hold cash and drugs.19
The son ‘was the instigator of the plan,’ but ‘he deferred to his father and relied upon’ him to supply cannabis, to hold cash and drugs, and to provide advice as to whom to supply.20 The Court found that the applicant ‘acted without any concern for the community’. T ‘was running his own operations,’ but ‘he relied on [the applicant and the son] for advice and, more importantly, the drugs that he supplied’.21
The second offence related to the applicant’s possession of funds in connection with the drug-supply operation. A sum of $154,000 in cash was found in premises occupied by the applicant. The Court did not make a finding as to how much of that sum was attributable to the illegal drug dealings engaged in by the applicant, his son and T.22 The Court did find, however, that the ‘sale of large quantities of leaf cannabis produced, as expected, considerable cash profits.’23 That is as far as the Court went, and I proceed on the same basis.
16 Ex R1, 50 [45].
17 Ibid.
18 Ex R1, 46 [23].
19 Ex R1, 47 [30].
20 Ex R1, 47 [31].
21 Ibid.
22 Ex R1, 49 [40].
23 Ex R1, 46 [26].
An early plea to both charges was entered by the applicant. This plea was found by the sentencing Court to be of utility.
The applicant was sentenced to four years and six months in respect of a supply offence (i.e., of having unlawfully supplied a commercial quantity of cannabis) after a discount of 25 per cent was given for his guilty plea. For the second offence (viz, of dealing with the proceeds of crime), a fixed term of one year and six months was imposed (after due allowance for the guilty plea). The sentences were concurrent. The Court noted that the second offence was intimately connected with the first, since a commercial drug supply for profit cannot occur without there being proceeds.24
REASONS
Prefatory remarks
With this background in mind, I come to the Direction. I usually set out four standard paragraphs that explain aspects of the Direction, and I do so again in what follows in paragraphs [23] – [26] below.
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
24 Ex R1, 49 [40].
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me
to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight ‘generally’ to the protection of the Australian community over other primary considerations, and it also provides that primary considerations should ‘generally’ be given greater weight over other considerations.
Application of the Direction
I now turn to apply the Direction. I turn first to consider the protection of the Australian community. Subparagraph 8.1(1) provides that decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. The Government is said to be 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 Australia confers on non-citizens in the expectation that they are and have been law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. I bear this principle in mind.
Subparagraph (2) provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.1 deals with the nature and seriousness of the non-citizen’s conduct.
Subparagraph (1)(a) provides that, without limiting the range of conduct that may be considered very serious, certain types of conduct must be viewed very seriously. These include acts of family violence and crimes of violence against women. I regard as very
serious the offences that occurred in relation to the applicant’s former domestic partner although I note again that these occurred many years ago.
I note also at this juncture that the respondent alleged further very serious offending (comprising a violent sexual assault) against the applicant’s previous partner. I have not taken this very serious allegation into account. I now explain why that is the case. The main evidence before me in relation to the alleged assault was a police record and a witness statement from the alleged victim.25 It was clearly a very serious allegation; but the allegation, although initially the subject of an indictment,26 did not proceed to trial (as the charge was withdrawn).27 The alleged victim was not called to give evidence before me, and no further statement in connection with the matter was elicited from her.
The respondent submitted that I could rely on the police record and the supporting statement as an accurate and authoritative record. I accept that submission. Police records are an accurate and authoritative record in respect of their contents. The record in this case, however, comprises an allegation only, albeit of the most serious kind. As I have said, there is a supporting statement made and signed by the alleged victim.28 So I accept as a fact that an allegation was made to police. I also acknowledge a statement from another person that records the fact that the alleged victim told her that she had been sexually assaulted by the applicant.29 The record does not advert to any information coming from a source other than the alleged victim that would allow me to conclude, on a safe basis, that the substance of the allegation is true. In all the circumstances, it is not appropriate for
25 Ex R1, 585.
26 Ex R1, 523-524.
27 Ex R1, 576.
28 Ex R1, 505ff, especially at 509-510 [19]-[22].
29 Ex R1, 512-514.
the Tribunal to conclude that the applicant was in fact guilty of this very serious assault. There is an insufficient evidentiary basis.
In reaching this conclusion, I acknowledge that many family-violence offences do not reach the courts for adjudication, and I also acknowledge that the Direction expressly permits decision-makers to act on information without there being a conviction.30 That said, I must have clear evidence before me that an allegation is in fact true, not merely evidence of an allegation having been made. Appropriate evidence was lacking in this case.
I regard the applicant’s participation and role in the drug-supply offence as very serious, noting that paragraph 8.1.1(1)(a) of the Direction provides non-exhaustive examples only of very serious offending. I have had regard to the concurrent sentences that were imposed by the Court in respect of the offending, and I note that the main sentence was a long one.
I do not think there is any trend as such.31 The involvement in the drug operation marked a very different sort of offending from the applicant’s previous offending.
I must also consider the risk to the Australian community. Paragraph 8.1.2(1) provides that I should have regard to the Government’s view that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. I take this into account.
I must also have regard to two factors when assessing risk and should do so ‘cumulatively’.32 The first is the nature of harm to individuals or the Australian community
30 See paragraph 8.2(2)(b) of the Direction.
31 Paragraph 8.1.1(1)(e) of the Direction.
32 That is, in conjunction with one another: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92, [31].
should the non-citizen engage in further criminal or other serious conduct. The second is the likelihood of the non-citizen engaging in that further criminal or other serious conduct.
The nature of the harm to the Australian community would be very serious on the assumption that the applicant engaged in a further supply of drugs to the Australian community. The illicit drug trade is, generally speaking, a matter of very serious concern. I bear in mind the sentencing remarks in this regard:
It bears repeating that the sale of illicit drugs causes considerable harm, not just to those who purchase and ingest the drugs, but to the community in general. The illicit trade in drugs is one of the principal sources for crime in our community. It is not just the sale of drugs. It is the crimes that are committed by those who seek to obtain funds for drugs, the destruction to family life, and the personal life that drugs cause. It is also a concern to the community and the Courts what is done with the enormous funds that can be made from the sale of illicit drugs.33
The applicant’s offending comprised an extremely anti-social criminal enterprise. It is not possible to know what particular physical harm the sale of drugs might have caused because the ultimate consumers are not known. But it is clear that an illicit drug can cause considerable harm.
The scale of the applicant’s operation is also of significant concern in this case. Eighty-two kilograms is a very large amount, and the Court refers to multiple transactions.
I must have regard also to the likelihood of the applicant re-engaging in this conduct. The applicant is, in my opinion, at a low risk of reoffending. I accept Dr Kwok’s, the expert psychologist’s, conclusion in this regard.34 The applicant well understands the harm that has come to him personally as a result of his drug offending. In particular, he understands fully that further offending would see him almost inevitably deported to Portugal were I to allow him to remain in Australia this time.
33 Ex R1, 48 [37].
34 Ex A2, 31 [76(iv)].
His present predicament is certainly not lost on him, I believe. He has experienced jail for the first time, and he has come extremely close to deportation to a country with which he has no familiarity. I accept that he fully appreciates that further offending would result in a jail sentence, and then the end of his time in Australia would inevitably follow.
I accept also that he has progressed well through the prison system. Prison was a very salutary and rehabilitative experience for him, and he was trusted to work outside the prison compound.35 He has also received very positive reviews from Serco in respect of his time in detention.36 So, the applicant has experienced a positive rehabilitative effect.
I turn now to the offending involving the applicant’s domestic partner. I accept that the violence was serious and that this violence can have a profound effect upon victims.37 I do think, however, that the violence in this case had a particular context, and the last assault resulting in a conviction took place some 17 years ago. I note that the applicant has a different relationship now, that this relationship is a stable one of many years’ standing, and that it has not been marked by violence.38 I do not regard the applicant, therefore, as posing a threat to his past partner, his present partner, or any future putative partner given the age of the convictions. In this regard, I accept the expert opinion of Dr Kwok.39
I must have regard to family violence committed by the non-citizen: paragraph 8.2 of the Direction. This consideration raises again the matter to which I have just made reference. The family violence against the former partner has not proved to be a ‘tipping point’ in my deliberations, and it is sufficient if I deal with the matter briefly. There are two occasions of
35 Ex R1, 94.
36 Ex A1, 23.
37 See Ex R1, 529-530 for the facts of the assaults.
38 The applicant’s partner was called to give evidence.
39 Ex A2,30-31 [76(iii)].
family violence that occurred many years ago, as I have said. I believe that the applicant is rehabilitated in the sense that he does not pose a risk of violence to his present partner. This new relationship is now of 16 years standing approximately.40 The applicant’s current partner gave evidence to the Tribunal. Her statement states explicitly that the relationship is free from violence.41 Accordingly, whilst I must take into account the family violence, I do not take it into account as something that is at all likely to be repeated in the context of the present relationship.
I must have regard to the strength, nature and duration of the applicant’s ties to Australia.
These ties are very considerable, which is not surprising since the applicant has spent over fifty years in Australia. First, it is important to point out, and to weigh carefully, that the applicant has spent his entire life in Australia with the exception of the first six years. His sense of purpose and identity centres entirely upon Australia. He has no connection with Portugal. He can speak rudimentary Portuguese,42 but cannot write or read the language.
A move to Portugal would have devastating personal consequences for the applicant, severing him from the country which has been his home for almost his entire life. I accept that the applicant has worked in Australia and supported family here.
I now turn to consider each of the categories of ties in question. The applicant’s mother is elderly and is presently ailing in an aged-care facility. She will be greatly affected by his departure as it will mark the end of their one-on-one contact. She has had mental-health crises in the past, and the applicant’s departure would exacerbate those difficulties. I accept
40 Ex A1, 3 [18].
41 Ex A2, 16.
42 He says he does not speak the language well: Ex R1, 75. He gave oral evidence that he speaks half-English, half-Portuguese when conversing with his mother.
that she would be grievously affected by his departure. I accept that the applicant has a strong bond with his mother, and he would be greatly affected as well.
The applicant has a serious and durable relationship with his partner, ‘Ms S’, and that relationship would end if the applicant left Australia. That relationship is approximately 16 years old as I have said. Both partners would be affected strongly by the termination of the relationship.
The applicant has three adult sons. One of these sons, ‘AD’, did not meet the applicant until much later in life, only in 2007 in fact. Understandably, he wishes to build a meaningful relationship with the applicant.43 Another son ‒ not the son involved in the offending ‒ has had special problems, including with depression and substance abuse. This son’s female partner, and the mother to his children, died in 2022, and he is working towards resuming responsibility for his children, who are presently living with their maternal grandmother. AD gave evidence of the significant challenges this other son faces,44 and these are alluded to in the other son’s own statement.45 The applicant gave oral evidence in relation to these issues as well. I do accept that the applicant’s departure would be particularly burdensome for him, and that he would be at risk of a relapse if his father were to leave. The third son
‒ in fact, the applicant’s stepson46 ‒ is his co-offender in the drug operation. He was raised by the applicant. He refers to the detrimental impact on him of his father’s removal to Portugal. He has no relationship with his biological father or mother.47 I accept the evidence that has been given in this regard about the impact upon the three sons. The applicant would be severely impacted as well.
43 Ex R1, 22 [13].
44 Ex R1, 364 [12].
45 Ex A1, 17-18.
46 But the stepson refers to the applicant and treats him as his father.
47 Ex R1, 369 [9].
The applicant is a stepfather to two of Ms S’s adult sons. I have taken into account the statement in support that refers to a relationship of 14 years’ standing as at the time of writing.48
The applicant is a biological grandfather to three children who would miss him greatly if he left Australia, and the applicant feels the same way.49 These are all meaningful relationships. Two of the children do not have a mother and are living with the maternal grandmother at the present time,50 and so they have a special need for family support. This was made clear in the oral evidence given by their maternal grandmother. She is feeling the strain of looking after the grandchildren alone. There is also a newborn child as well, a fourth biological grandchild.51
I accept that the applicant is also a step-grandfather in connection with children belonging to his partner’s family, and I accept they would miss him greatly if he did not stay in Australia, and the same is true for the applicant. I accept that the applicant has maintained a positive relationship with his three older biological grandchildren, and with his step-grandchildren, and wishes very much to play a meaningful role in the newborn grandchild’s life. He has maintained contact with them from detention as best he can.
The applicant has siblings here in Australia, two brothers (‘P’ and ‘F’) and a sister (‘A’). P and the applicant have been involved in a family cement-rendering business for many years.52 P refers to the impact of his brother’s absence on the business,53 and there will be
48 Ex R1, 370-371.
49 Artwork, messages, and photos were tendered: Ex A1, 31-42.
50 Ex A1, 16.
51 Ex A4.
52 It appears the other brother, F, is, or has been, also involved. See Ex R1, 349: ‘I’ve been working for the past 20 years with my brothers.’
53 Ex A1, 7.
a personal impact as well were the applicant to leave Australia. A has written a statement in support.54 I do not doubt that the severing of these relationships would be very difficult for the applicant and for the siblings as well.
Looking at the wider family, there are a number of older nephews and nieces. These relationships are, of their nature, less direct, but they are still important. Statements were before me in evidence.55 They refer to the support the applicant has provided over the years and the family’s valuable shared experiences. They have derived much encouragement and help from their uncle.
The applicant lists a number of uncles, aunts and cousins as close family members in his submission, and I take their interests into account.56
Moving more widely, I note that the applicant has a large circle of friends, who attest to his good character,57 and one, ‘Ms PJ’, gave oral evidence on his behalf in support of her written statement.58 I accept that the applicant’s removal to Portugal would affect them all. I also note that the applicant has participated in community events, including a regular charitable motorcycle ride for children who are suffering from cancer.
I bear in mind that the applicant is now 60 years of age. He is an integral part of many people’s lives. I accept that he has worked hard in his cement-rendering business and has supported his family well. He has raised two sons, who acknowledge their distance from their biological mother. It would be wrong, I believe, to discount any of his significant
54 Ex R1, 354ff.
55 Ex A1, 10, 11, 12-13, 21-22. Oral evidence was also given by one of the nephews, P’s son.
56 Ex R1, 71.
57 Ex R1, 372-3, 374-5, 376-7 (his partner’s sister), 383-384.
58 Ex R1, 380-382.
contribution by emphasising the drug-supply convictions and the violence in the relationship with his former partner.
The ties-to-Australia consideration counts very substantially in the applicant’s favour in my view. I have read carefully the submissions made in the applicant’s Statement of Facts, Issues and Contentions59 and I accept them.
I must take into account the best interests of minor children in Australia. In this regard, I must take into account the interests of the grandchildren and step-grandchildren with whom the applicant has built a substantial relationship. There is also a newborn grandchild, as I have said. Children benefit substantially from the interest and guidance of grandparents. I take into account that the relationships are not parental as I am required to under the Direction, and so far as the newborn infant is concerned, it is true to say that the relationship can only be properly described as nascent, rather than as an existing one of any substance; but nevertheless it remains the case that the applicant has a strong tie to the minor children and their interests would be substantially affected if he were to be deported. I note again that some grandchildren are presently living with their maternal grandmother and would benefit particularly from wider family support, including the applicant’s.
I accept the submissions that appear in this regard in the applicant’s Statement of Facts, Issues and Contentions.60
Under paragraph 8.5 of the Direction, I must take into account the expectations of the Australian community. Subparagraph (1) provides that the Australian community expects non-citizens to obey Australian laws while in Australia. As ‘a norm’ – although not as an
59 Ex A3, 6-13, [53]-[95].
60 Ex A3, 13-15 [96]-[111].
inflexible rule – the Australian community expects the Government not to permit non- citizens to remain in Australia where they have engaged in serious conduct in breach of the expectation. This principle has obvious application in this case as the drug offending was very serious.
Subparagraph (2) provides that non-revocation of the mandatory cancellation of a visa may be appropriate simply because of the character concerns arising from the offences is such that the community would expect the Government not to continue to permit the person to reside in Australia. This consideration does, technically, apply to the family violence to which I have earlier made reference; but as I have been at pains to point out, this offending occurred long ago and its risk of recurrence is so low that I believe I should set it to one side. This offending has not been a ‘tipping point’ in my decision-making, as I have said.
The consideration that arises from paragraph 8.5(1) does apply to the drug offending. It sets out an important principle. Moreover, the expectations as set out in paragraph 8.5 apply whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community;61 and I am not to weigh the community’s expectations in a given case but am to proceed on the basis of the Government’s views as articulated in paragraph 8.5.62 This consideration does count substantially against the applicant.
I must have regard to so-called ‘other’ considerations under section 9. I accept that if the decision under review were affirmed, the applicant would be obliged to leave Australia permanently with no prospect of ever regaining the right to return. I accept also that the applicant could face substantial difficulties in establishing himself in Portugal. He does have
61 Paragraph 8.5(3) of the Direction.
62 Paragraph 8.5(4) of the Direction.
cement-rendering skills that are transferable to Portugal, and he gave evidence that he is still fit enough to work; but he does not have any experience of living in the country, has rudimentary spoken Portuguese only, and has no connections with whom he could begin to map out a life for himself at quite an advanced age. I accept that he might be subject to the particular burden of not being able to access welfare benefits since he has no working history in Portugal.63 All in all, he could face substantial difficulties especially since his criminal convictions might well be a barrier to employment. I accept that the applicant has a degree of asthma64 and would face mental stress on removal to Portugal.65 I do not think the applicant has a history of substance abuse that would pose serious difficulties for him in Portugal.66 He denied any addiction in his evidence to me. I am prepared in this case to attribute some weight to his mental-health difficulties because the applicant would be in a special position as a person without support on arrival in Portugal. In that sense, he might well face challenges that are not faced generally by other community members there. I accept that Portugal is a relatively disadvantaged European country whose health system faces challenges,67 but the applicant does not suffer from a medical condition requiring ongoing dependence on health professionals.
I accept also that there would be an effect upon his family business, with which he has been meaningfully engaged for a considerable period of time. It does not matter whether this is brought technically under the rubric of ‘impact on Australian business interests’ or whether
63 The Applicant provided references that made clear the applicant may not be eligible for unemployment benefits: Ex A3, 19, [137] fn 7.
64 The expert report of Dr Kwok refers to ‘mild asthma’ as disclosed by his medical records and records further that the applicant said to her that he was ‘in good health’: Ex A2, 21 [22]. Ex A1, 48 refers to mild asthma. The use of Seretide and Ventolin are referred to in his medical records: Ex A1, 144. The applicant said on that occasion that he does not usually use them; and at Ex A1, 122, he states that his asthma is well controlled at this stage.
65 Ex A3, 16 [124].
66 Ex A3, 21 [19]-[21].
67 Ex A3, 17 [128] – [129].
it is simply another consideration that is not listed in section 9. Either way, it is a factor that I need to bring to account specifically, and I do so.
Weighing the considerations
I turn now to weighing the considerations. It is important in these matters, in my opinion, to grapple with the essence of the decision that confronts the Tribunal wherever possible. I have already indicated that the applicant’s earlier offending in life is to my mind of no relevance to the decision I must make. Decisions in this area should not be made with undue emphasis upon unrelated offending going back many decades and belonging to a different stage of an applicant’s life. The Direction speaks forcefully against family violence, and the proven family violence in this case was not insignificant. But, again, the violence is many years old, and it is not in my opinion relevant today given the greatly changed circumstances of the applicant’s personal life. Whilst I must take it into account, it has not been a ’tipping point’ in my deliberations, as I have said.
This leaves the conduct that has been of most concern; namely, the drug offending. It is that offending that I believe I must weigh most carefully in deciding whether to affirm or set aside the decision under review.
In these matters, it is appropriate that the Tribunal should face squarely what a decision to affirm would imply for an applicant and for those close to him. In this case, it would mean sending back to Portugal a person who has rudimentary spoken Portuguese only and who emigrated to Australia at six years of age. That would be an extremely heavy burden to place on a 60-year-old. I bear in mind that the applicant might not find work and might have
to live from his savings68 or the contributions family here in Australia chose to make to him.69 He would find it difficult at this stage of his life to adjust to a country with which he has no familiarity. Portugal is a relatively disadvantaged country within Europe.
The applicant would be effectively severed from his family in Australia so far as one-on-one contact is concerned. He would cease to be a partner to Ms S; he would have, in effect, to farewell his ailing mother; and he would lose one-on-one contact with all other members of his family. That would be a very severe burden for him to bear, and I accept that the mere prospect of departing Australia has been a very stressful one for him.
It would also be an extremely severe burden for his family to bear. Family connections give meaning to life, and the applicant’s participation in his family has provided a substantial degree of stability for them. I accept that the applicant provides emotional stability and support to a great number of people. There is a family business also to consider. That business presently faces difficulties because he is not actively involved in it.
There is no doubt that a decision to affirm would effectively tear apart this family as a cohesive unit. That would be a direct consequence of affirming the decision under review. I need to face that fact squarely, and I do so. I bear in mind that paragraph 5.2(6) of the Direction provides that Australia may afford a higher level of tolerance of criminal conduct by non-citizens who have lived in the Australian community from a very young age. That principle is of importance in this case.
68 In this regard, the applicant gave oral evidence that he has three properties, but also faces an order to pay
$1.4 million to the Crime Commission. He said that he hopes the sale of two of the properties would be enough to meet the repayment obligation. That he owns three properties is referred to in one of his written statements: Ex R1, 61.
69 See fn 63 above.
As against that, I must weigh the serious drug offending. A lengthy sentence of imprisonment was imposed. The applicant was found by the sentencing Court to have been partly motivated by a desire to protect his son from nefarious criminal elements; but that was part only of his motivation. Personal profit was also a motivator. According to the Court, the applicant used his sources to obtain cannabis to assist the criminal enterprise, which indicated a connection with the criminal element in Australia according to the Court.70
The criminal enterprise engaged in by the applicant was extremely antisocial. The supply of cannabis is a serious offence in New South Wales, and the penalty imposed by the Court reflected the gravity of the offending.
The applicant’s offending was particularly serious because it involved trading on a significant scale. The quantity of 82 kilograms of cannabis was self-evidently large. Both the applicant’s son and T were intended to on-supply the cannabis. It was an implicit part of their arrangement that the son and father would operate their undertaking as a business for mutual benefit. The applicant assumed an important role in the undertaking.
The drug trade harms drug users, who are the immediate potential victims. Furthermore, by involving himself in the supply chain that begins with the producer and ends with the user, the applicant assisted criminal elements in the community.
That said, I accept that the applicant is now at a different stage of his life and has experienced both a prolonged period in jail and the very great uncertainty of immigration detention as a precursor to deportation. The period of detention has been significant. I have already indicated that I regard him as having a low risk of reoffending.
70 Ex R1, 50 [45].
I must also weigh the community-expectations consideration. Although drug offending is not nominated as one of the particular offences that give rise to concerns under paragraph 8.5(2), there is no doubt that drug-trading on a commercial scale is a serious matter, and serious offending is addressed generally in paragraph 8.5(1). There is no doubt, in my opinion, that the applicant has seriously breached the expectations of the community by his involvement in this significant criminal enterprise. It was an ongoing operation, not merely a one-off venture to make a limited amount of money. Subparagraph 8.5(1) specifies ‘the norm’ ‒ albeit not the inflexible rule ‒ governing the community’s expectations in relation to this matter.
The scale of the drug operation in this case has assumed considerable importance in my decision-making. It involved 82.75 kilograms of cannabis leaf as I have said. The applicant’s offending cannot be said to be minor. I must weigh that aspect of the matter very carefully.
I accept also that it is vital that particular attention be paid to the individual circumstances of a case. I am very conscious of the applicant’s age, his unfamiliarity with Portugal, the role he plays in his family (both immediate and extended), and the real impact a decision to affirm would have upon him and his family. I accept that he has demonstrated genuine rehabilitation and this is shown by his behaviour in jail and in detention.
Nevertheless, I have found that the preferable conclusion in this case favours non- revocation of the cancellation decision given the very strongly antisocial aspects of the principal offending and given particularly its scale. This is a case where the admittedly strong considerations in favour of the applicant do not outweigh the primary considerations of protection of the Australian community and of community expectations. I have not found this conclusion at all easy, particularly because the applicant has spent his entire life in
Australia with the exception of the first six years of it. Nevertheless, this conclusion does appear to me to be the preferable one on all the evidence before me.
SUMMARY AND FORMAL DECISION
My conclusion, after a weighing of the various considerations under the Direction, is that they do not favour, on balance, revocation of the visa-cancellation decision. There is not, therefore, ‘another reason’ to revoke the cancellation decision under s 501CA(4)(b)(ii) of the Act; and, accordingly, my jurisdiction to revoke the visa-cancellation decision under that provision does not arise. It follows that I should affirm the decision under review.
The formal decision of the Tribunal is to affirm the decision under review.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Manetta.
…………[sgnd]………….
Dated: 26 March 2025
Dates of Hearing: 24, 26 September 2024; 3 October 2024
Applicant’s Counsel J Donnelly (instructed by Zarifi Lawyers)
Respondent’s Counsel R Francois (instructed by Mills Oakley)
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