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

Kerry and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 869 (9 April 2020)
Division:GENERAL DIVISION
File Number: 2020/0471
Re:Steven Ian Kerry
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:9 April 2020
Place:Brisbane

The decision under review is affirmed.
........................[sgd]...........................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class AT Subclass 126 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. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
9 April 2020
THE ISSUE BEFORE THE TRIBUNAL

Mr Steven Kerry (“the Applicant”) is a 35 year old citizen of the United Kingdom. When he was 12 years old his family - being his parents, brother sister and himself - moved to Australia. The most recent visa granted to him was a Class AT Subclass 126 (“the Visa”) on 24 November 1996[1]. He has not left Australia since then.[2]
[1] Exhibit G1, G-Documents, G-2, page 175 and G-4, page 273.
[2] Exhibit G1, G-Documents, G-4, page 273.
The Applicant has a lengthy criminal history starting in 2003.
In 12 October 2015 a delegate of the Respondent decided to mandatorily cancel his visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test.
In November 2015, the Applicant made representations and provided supporting material[3] as to why that decision should be revoked. The reasons included that:
·     he had learned his lesson, engaged in some prison programs with respect to substance abuse[4], and was determined not to re-offend;
·     it was important to his rehabilitation to be near his family support and external support agencies in Australia;
·     his mother suffered from Type 1 Diabetes and the stress of the Applicant’s visa being cancelled made her condition worse and she suffered a heart attack;[5] and
·     the Applicant would not forgive himself if he could not be around to help look after his parents[6].
[3] Exhibit G1, G-Documents, G-2, pages 112 to 163.
[4] Exhibit G1, G-Documents, G-2, pages 122 and 123.
[5] Exhibit G1, G-Documents, G-2, pages 127 and 141.
[6] Exhibit G1, G-Documents, G-2, page 154.
On 29 April 2016, the decision to cancel the Applicant’s visa was revoked and the notice of that revocation contained the following warning:
Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.[7]
[7] Exhibit G1, G-Documents, G-2, page 137.
The Applicant signed an acknowledgement of having received the notice on 10 May 2016.[8]
[8] Exhibit G1, G-Documents, G-2, page 139.
In July 2016 the Applicant re-offended. Later, in August 2017 (at the latest) he commenced a drug-trafficking operation, mainly dealing in methylamphetamine[9] which he carried on for six months until he was arrested and remanded in custody.
[9] Also known as methamphetamine.
On 26 April 2019 the Applicant was convicted of trafficking in a dangerous drug between August 2017 and February 2018 and sentenced to imprisonment for five years and six months. In that sentencing episode, he was also convicted of other offences that included unlawful possession of weapons, unlawful possession of a motor vehicle and possession of stolen property, and sentenced to shorter concurrent periods of imprisonment.[10]
[10] Exhibit G1, G-Documents, G-2, pages 26 and 27.
This led to the Respondent, again, deciding to mandatorily cancel the Applicant’s visa under s 501(3A) of the Act on 12 June 2019.[11] On 17 June 2019, the Applicant again made representations as to why the decision should be revoked, which are substantially the same as the representations he made the first time. On 20 January 2020, the Respondent decided not to revoke its decision (“Decision under Review”).[12]
[11] Exhibit G1, G-Documents, G-2, page 175.
[12] Exhibit G1, G-Documents, G-2, page 10.
The Applicant lodged an application with this Tribunal on 28 January 2020 seeking a review of the Decision under Review.[13] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[13] Exhibit G1, G-Documents, G-1, pages 3 to 9.
The hearing of this application proceeded on 26 and 27 March 2020. The Applicant appeared by telephone on the first day and video-link on the second day when he gave evidence. His mother, father and sister gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
THE APPLICANT’S BACKGROUND AND HIS OFFENDING HISTORY
The Applicant and his family moved to Australia when he was 12. The Applicant was teased and bullied at school in the United Kingdom and in Australia.[14] In Australia, sometimes his classmates were physically violent towards him.[15] When the Applicant was 12 years he told his mother that he had tried to kill himself and that it was not the first time[16]. His mother says she took him to some counselling sessions in his teenage years, but she could not remember what the outcome of those was.[17] She says even as a little boy he always challenged her, she always thought he had “the defiancy disorder”.[18] The Applicant’s father says he “suffered with mood swings and issues with defiance from a young age prior to our family emigrating to Australia”, and that “these stemmed from his lack of confidence and low self-esteem”.[19] Because of the way he transitioned from the United Kingdom school system to the Australian school system he found it difficult to keep up academically. His mental health suffered and he had low motivation and self-confidence.[20]
[14] Transcript, page 26, lines 29 to 47; and page 30, lines 16 to 21; Exhibit A4, Affidavit of Joanne Yates, 27 February 2020, paragraph 8.
[15] Exhibit A5, Applicant’s Statement, 20 March 2020, paragraph 17.
[16] Exhibit A2, Affidavit of Sonia Kerry, 27 February 2020, paragraph 13.
[17] Transcript, page 28, lines 1 to 3.
[18] Ibid, lines 3 to 6.
[19] Exhibit A2, Affidavit of Ian Kerry, 27 February 2020, paragraph 12.
[20] Exhibit A5, Statement of Stephen Kerry, 20 March 2020, paragraphs 16 to 21.
The Applicant started using cannabis when he was around 15 or 16 years old.[21] He subsequently became addicted to methamphetamine.[22] He attributes his offending to his dependency on methamphetamine. His family, in their evidence, tended to corroborate this. I accept that the Applicant has suffered from a long standing dependency on methamphetamine. It is readily apparent that his criminal history largely consists of offending that involves possession of or dealing with dangerous drugs, possession of things relating to drug use, and behaviour that appears to be linked to drug use and drug trafficking. The Applicant claims that he engaged in drug trafficking to support his addiction.
[21] Exhibit A5, Applicant’s statement, 20 March 2020, paragraph 57.
[22] Ibid, paragraph 58.
The Applicant’s father recalls that around eight to ten years ago, when the Applicant was under the influence of drugs, he lay in the driveway of the family home hitting his head on the concrete and punching himself in the face. The Applicant’s parents took him to hospital, but were told that nothing could be done until the Applicant stopped taking drugs and sought treatment himself.[23] There is a police report of this incident dated 24 July 2006[24] which would make the Applicant twenty-one years old at the time. The Applicant’s father recalls seeing the Applicant punching himself on at least two other occasions.[25] He said the Applicant has not been diagnosed with any condition, explaining that:
“.. it’s hard for us to seek it. It has to be done by Steven himself. And he, obviously, has to be drug-free and in a frame of mind to do it.”[26]
[23] Transcript, page 9, lines 1 to 37.
[24] Exhibit G2, Supplementary G-Documents, G-10, pages 323 to 324.
[25] Transcript, page 14 lines 21 to 25.
[26] Transcript, page 14, lines 39 to 41.
The Applicant’s criminal history is seven pages long and contains some 70 offences. The Applicant has been brought before the courts, convicted and sentenced on at least 22 occasions.[27] He has been given the benefit of, and breached, the following community based orders: a community service order, a probation order, a suspended sentence of imprisonment and parole[28].
[27] Exhibit G1, G-Documents, G-2, pages 26 to 32.
[28] Ibid.
The Applicant’s first offence was in December 2002 when he was caught in possession of tainted property. His first drugs offence was in early 2004 when he was caught in possession of utensils.
In November 2003 and January 2004 separate Protection Orders were made against the Applicant.[29] There are police file notes from October 2003 that record that a female person who had been living with the Applicant reported that the Applicant had punched her with a closed fist and, armed with a steel bar and then a baseball bat, had threatened to kill her. She had subsequently moved out and gone to live with her mother.[30]
[29] Exhibit G2, Supplementary G-Documents, G-10, page 312.
[30] Exhibit G2, Supplementary G-Documents, G-10, page 314.
Subsequent file notes record the Applicant contravening a domestic violence order in December 2003. The aggrieved presented to a police station with injuries including bruising to her arm, stomach and leg.[31] The police made several failed attempts to locate the Applicant that included contacting his parents and sister. When they did locate him in June 2004, and asked him about breaching the domestic violence order he admitted that domestic violence had occurred but said he could not recall the exact dates.[32] The file notes state that the Applicant was issued with a Notice to Appear at Redcliffe Court for breaching the Order.[33]
[31] Exhibit G2, Supplementary G-Documents, G-10, pages 315 and 316.
[32] Exhibit G2, Supplementary G-Documents, G-10, page 316.
[33] Ibid.
The file notes from January 2004 record that there had been multiple incidents relating to violence to property in which the police had been called, including severe damage to walls and doors throughout the house, and that the aggrieved person and his wife were “clearly distressed”.[34]
[34] Exhibit G2, Supplementary G-Documents, G-10, pages 318 and 319.
When cross-examined about these Protection Orders, the Applicant said they were taken out by his parents in relation to him damaging property.[35] However, clearly the Protection Order from 2003 did not relate to his parents or to property damage. The Applicant denied having ever been violent towards a partner.[36] However, the Applicant’s sister gave evidence that he and a previous partner were violent towards each other[37], although she did not say when or which partner. I am cognisant that the Applicant was never convicted of breaching the Domestic Violence Order. There is reliable evidence before me that a female partner accused the Applicant of domestic violence, police saw injuries on her body on one occasion, and the Applicant admitted to acts of domestic violence during the relevant period. There is evidence from the Applicant’s sister that is broadly corroborative in the sense that she said that the Applicant had been in a relationship that involved violence. I prefer the contemporaneous documentary police evidence, particularly in light of the Applicant’s sister’s evidence, to the Applicant’s evidence. I am satisfied that the Applicant was violent to a female partner and caused her injury in breach of a Domestic Violence Order.
[35] Transcript, page 73, lines 25 to 36.
[36] Transcript, page 73, lines 8 to 18.
[37] Transcript, page 42, lines 14 to 15.
I am further satisfied that for an unknown period up to January 2004 he caused damage to his parents’ home on numerous occasions.
Between 2006 and 2011 the Applicant was dealt with by the courts numerous times for offences that include possessing illicit drugs (mainly cannabis, some methylamphetamine) and drug related items, possessing restricted items (a telescopic baton[38] and on another occasion nunchucks[39]), possessing unlawful weapons (two metal pistol crossbows[40] and on another occasion a flick knife with a sharpened double blade[41]) breaching bail, breaching a community service order (twice), breaching a probation order and breaching a suspended sentence (twice).[42]
[38] Exhibit G2, Supplementary G-Documents, G-12, page 365.
[39] Exhibit G2, Supplementary G-Documents, G-12, page 374.
[40] Exhibit G2, Supplementary G-Documents, G-12, page 374.
[41] Exhibit G2, Supplementary G-Documents, G-12, page 404.
[42] Exhibit G1, G-Documents, G-2, pages 29 to 31.
In November 2011, he was ultimately sentenced to concurrent periods of six, three and two months imprisonment for various drug related offences and he was ordered to serve a suspended sentence. He was given automatic parole in January 2012.[43]
[43] Ibid.
During 2013 the Applicant committed multiple offences. On 25 May 2013, police searched his home and found eight clip seal bags containing different types of amphetamine with a total weight of 18.6grams. They also found a glass pipe, digital scales and four mobile phones. On 18 November 2013, while on bail, he was found in possession of a subutex tablet and a pipe and remanded in custody.
In August 2014 he was convicted, in relation to the 25 May 2013 search, of possessing dangerous drugs that involved a quantity “of or exceeding schedule 3 but less than schedule 4” and sentenced to 18 months imprisonment. In the same sentencing episode he was convicted of the following offences and given concurrent sentences:
·     disqualified driving (his sixth offence of disqualified or unlicensed driving since June 2010) – six months imprisonment;
·     possessing dangerous drugs (the subutex tablet[44]) - 12 months imprisonment;
·     possessing utensils or pipes, and possessing property suspected of having been used in connection with a drug offence - two months imprisonment;
·     possessing utensils or pipes (on two separate occasions), possessing anything used in the commission of crime and possessing property suspected of having been used in connection with a drug offence (two sets of scales and the four mobile phones) - three months imprisonment; and
·     breach of bail condition, failure to appear in accordance with an undertaking (twice), unlawful possession of weapons (taser), unlawful possession of restricted drugs, and assault or obstruct police officer - not further punished but ordered to pay compensation of $200 to the police officer.[45]
[44] Exhibit G2, Supplementary G-Documents, G-12, page 455.
[45] Exhibit G1, G-Documents, G-2, pages 28, 29, 34 and 35; Exhibit G2, Supplementary G-Documents, G-18, page 764.
Having served 8 months in pre-sentence custody, the Applicant was immediately released on parole. He breached his parole by committing further offences on 6 October 2014. His parole was suspended on 10 November 2014 however he remained at large and continued to offend[46]. He was returned to custody in February 2015 having committed offences on six separate dates since he was released on parole.[47]
[46] Exhibit G2, Supplementary G-Documents, G-23, page 808; Exhibit G1, G-Documents, G-2, page 28.
[47] Ibid; Exhibit G1, G-Documents, G-2, page 28.
In August 2015, he was convicted of the following offences, with all sentences ordered to be served concurrently except for the sentence for breaching bail:
·     two counts of possessing dangerous drugs (.98g of cannabis and 0.88g of methyamphetamine[48]) – imprisonment two months;
·     receiving tainted property and possessing utensils – imprisonment one month;
·     failure to appear in accordance with a bail undertaking – imprisonment one month;
·     two counts of breach of bail - $500 fine; and
·     possession of dangerous drugs (.6g of methylamphetamine in a clip seal bag, 0.2g methylamphetamine in a clip seal bag and 1.8g methylamphetamine in a plastic container[49]), possession of utensils and possession of property suspected of having been used in connection with the commission of a drug offence - $1000 fine; and
·     assault or obstruct police officer - $300 fine.
[48] Exhibit G2, Supplementary G-Documents, G-12, pages 485 to 497.
[49] Exhibit G2, Supplementary G-Documents, G-12, page 472.
Two months later, the Respondent notified the Applicant of a decision to cancel his visa, and in April 2016 that decision was revoked. There is no record of the Applicant re-offending until July 2016 when police found cannabis in a hire car that he was driving. The Police Court Brief in relation to that offence states that the police were aware that the Applicant used hire vehicles to transport methylamphetamine and cannabis, and that over a four week period the police has “street checked and searched” the Applicant in four separate hire vehicles.[50] Police found 30g of cannabis hidden in the roof cavity.
[50] Exhibit G2, Supplementary G-Documents, G-12, page 499.
In his statement to the Tribunal the Applicant said ‘In or around 2016, my drug-addiction began to heighten when my best friend … committed suicide.’[51] When giving evidence, he said he thought that had happened in mid-2016 but later thought it could have been in 2017.[52]
[51] Exhibit A5, Applicant’s Statement, paragraph 60.
[52] Transcript, page 68, lines 40 to 43; page 80, lines 15 to 20.
During 2017 the police began investigating the Applicant in relation to drug trafficking.[53] On 18 January 2018, police observed a vehicle in the driveway of the Applicant’s parents’ home, where he lived, that had obvious false plates. The vehicle had been stolen four days earlier. Police demanded to enter the home and saw a man (not the Applicant) run into the toilet and heard several flushes. A search of the residence revealed a bum bag containing a magnetic drug concealment box containing approximately 4 grams of methylamphetamine and a canister of capsicum spray. Police seized the stolen vehicle and later found 40 grams of methylamphetamine inside it.[54]
[53] Exhibit G2, Supplementary G-Documents, G-20, page 775, paragraphs 1 and 2, Statement of Facts for Court.
[54] Exhibit G2, Supplementary G-Documents, G-12, page 508, paragraph 18.
On 1 February 2018, police executed a search warrant at the Applicant’s parents’ home. The Applicant, his girlfriend and his father were present. They located $6,135 in cash concealed inside a magnetic box fixed to the inside of the garage door, a mobile phone in the Applicant’s bedroom containing messages evidencing his trafficking in methylamphetamine, drug related paraphernalia including pipes and clip seal bags, numerous mobile phones and SIM cards throughout the dwelling, a cryo-vac heat sealing machine and bags, a taser disguised as a torch and a home-made taser. In the boot of the Applicant’s car they found stolen goods still in their packaging. The Applicant denied that he was engaged in trafficking of methylamphetamine. He said most of the suspected stolen items were gifts that he had purchased. Police subsequently conducted a search of a storage shed rented by the Applicant and found more stolen items still in their packaging and a stolen motorcycle.[55] The Applicant was arrested and remanded in custody that day.[56]
[55] Exhibit G2, Supplementary G-Documents, G-12, pages 508 and 509; G-20, pages 775 to 777.
[56] Exhibit G1, G-Documents, G-2, pages 26 to 27.

On 26 April 2019 the Applicant was convicted of the following offences arising from the police searches and the investigation into the Applicant’s drug trafficking, and the following concurrent sentences were imposed:
·     trafficking in dangerous drugs - five years and six months imprisonment;
·     supplying schedule two dangerous drugs (x2), and unlawful possession of weapons (x2) - six months imprisonment;
·     possession of dangerous drugs, and possession of anything used in the commission of crime – conviction recorded, not further punished;
·     unlawful possession of a motor vehicle with intent to deprive - 18 months imprisonment;
·     possession of suspected stolen property - 12 months imprisonment; and
·     possess property suspected of having been used in the commission of drug offence (x 2), contravene directional requirement, possess utensils or pipes, possess property suspected of being the proceeds of an offence under the Drugs Misuse Act 1986 – conviction recorded, not further punished.[57]
[57] Ibid.
In passing sentence, the learned sentencing Judge told the Applicant:
“I don’t think I need to tell you how destructive methylamphetamine is. It’s clearly had an enormous impact on your life. You’ve lost your liberty as a result of it... It impacts other members of our community both because of the serious impact it has on people’s health but also on their behaviour and we see that all too often in this Court, the offending that goes on when people are affected by this drug. All of those reasons combine to explain why serious penalties are imposed on people who not only choose to use it but choose to sell it and peddle it to other people and continue the cycle of misery that is caused by this drug.
…
You are being sentenced on the basis that you were what is described as a successful street-level dealer of methylamphetamines but that you would also supply to some customers who would on-sell to their own customers.
Intercepted communications indicated that about 70 people knew that they could get drugs from you. Some made contact with you daily. Some multiple times a week. You supplied or offered to supply drugs every day in that period. So it’s fair to say you were very active in this period. You were supplying in a range of quantities but most commonly supplied in quantity of 1.75 grams to 3.5 grams. So you’re described as a street-level dealer but not the lowest level.
I accept the submission for the Crown that it’s to be inferred that there was some level of sophistication to your business because you were able to arrange for associates to rent apartments for you for the purpose of conducting drug transactions. You had security set up at your home. You used encrypted messaging. And it seems you supplied drugs on credit and sometimes for substantial amounts. There is a message referred to where somebody owed you at one stage just under $11,000 which represents a substantial quantity of drugs.
I accept that you were engaging in this at a time when you were heavily addicted to methylamphetamine. I accept that submission. And that you were doing it to feed your addiction. But the level of sophistication in your business goes a bit beyond that, can I say. You’re not just selling points[58] to make enough money to buy what you need. There’s something more to this than that.
In addition, you are charged with being found in possession of a variety of stolen property…and it was part of your business to receive these tainted goods as payment for drugs and then sell them. So that’s another element to the sophistication of your business.
You were also found in possession of two weapons, a can of tear gas and two tasers, but there is no suggestion on the facts of those being used in connection with your trafficking business…
You have been in custody now for about 15 months since 1^st of February 2018 which is the longest period that you’ve been in custody. I’m told that on this occasion you have been drug free while you’ve been in custody and I’m sure that will have been a shock to your system in the beginning but hopefully stand you in good stead in the future…”[59]
[Underlining added]
[58] A “point” is 0.1g.
[59] Exhibit G1, G-Documents, G-2, pages 40 to 45.
On 13 October 2019, four months after the Respondent decided to cancel the Applicant’s visa and he requested revocation of that decision, security staff found methamphetamine and eight patches of Suboxzone (a drug that treats opioid addiction) hidden in a speaker owned by him in his room. A “Client Incident Report”[60] states:
“Be advised that MR S Kerry claimed responsibility/ownership for all implements/items when asked. This was evident and filmed on video.”
[60] Exhibit G1, G-Documents, G-2, page 169.
The police attended the Immigration Center and the Police Court Brief says that the Applicant admitted to owning the Suboxzone but refused to say how he got it.[61] The Applicant was subsequently convicted of two offences of possession of dangerous drugs, one with respect to each substance, and not further punished. The Applicant has provided a statement, dated 20 March 2020, in which he says:
“65. On 13 October 2019, a detention officer inspected my room at the immigration detention centre. During the inspection, the officer discovered patches of suboxzone and some methamphetamine in a speaker inside my room;
66. I admit that the speaker inside my room was mine but the illicit drugs mentioned in paragraph 65 were not mine.
67. The illicit drugs mentioned in paragraph 65 that were discovered in my speaker belong to a friend… who was a detainee at the immigration detention centre and later on was deported to New Zealand”[62]
[61] Exhibit G2, Supplementary G-Documents, G-12, page 553.
[62] Exhibit A5, Statement of Stephen Kerry, 20 March 2020, page 6.
The Applicant was asked in the hearing why he took responsibility for the drugs if they were not his[63] and he did not give a responsive answer.[64] I note that the Applicant was convicted of possession of the drugs and I prefer the contemporaneous documentary evidence over the Applicant’s recent, self-serving evidence. I am satisfied that the drugs were the Applicant’s. I make no finding about what he intended to do with them.
[63] Transcript, page 72, lines 5 to 10.
[64] Transcript, page 71, line 39 to page 72, line 10.
In addition to his extensive criminal history, the Applicant has a history of traffic infringements spanning 2002 to 2012 which includes:
·     14 offences of wilfully start/drive vehicle in way that makes unnecessary noise/smoke;
·     six offences of driving a defective vehicle or drive/park vehicle if parts/equipment not in safe condition;
·     one offence of drink-driving and one offence of drug driving;
·     three offences of exceeding the speed limit by more than 13 km/h;
·     two offences of exceeding the speed limit by more than 20 km/h;
·     two offences of exceeding the speed limit by more than 30 km/h;
·     one offence of exceeding the speed limit by more than 40 km/h;
·     one offence of race between vehicles on road;
·     six offences of disqualified driving/unlicensed driving; and
·     miscellaneous other offences.
The impression his traffic record gives is that he drove a modified car and engaged in hoon driving. When asked if he had a modified car, and if he was doing burnouts or racing, the Applicant minimised the extent of it, saying that his car had a modified exhaust and some “little things” done to it, that he had done “one or two burnouts” and that he had been “done for racing once before”.[65]
[65] Transcript, page 76, line 42 to page 77, line 16.
Based on his traffic history, and his evidence to the Tribunal, I am satisfied that the Applicant engaged in reckless, hoon driving in a modified vehicle on many occasions over a period of several years. His traffic history stops in November 2012. The Applicant’s disqualification from driving continued until August 2016.[66] There are no further entries in the print-out of the Applicant’s traffic history that is before me, although it was printed in March 2015 so it is current only until that time.
[66] Exhibit G2, Supplementary G-Documents, G-18, page 764.
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.
The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[67]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[68]
[67] [2018] FCAFC 151.
[68] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[69] I will address each of these grounds in turn.
[69] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant was sentenced to a term of imprisonment of five years and six months which included a non-parole period of 18 months. It is conceded on behalf of the Applicant that he has a “substantial criminal record” and, accordingly, he does not pass the character test.[70] I am satisfied that the Applicant does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[70] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), paragraph 8.
Is There Another Reason Why the Cancellation of the Applicant’s visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
(1) Informed by the principles in paragraph 6.3 above, a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[71]
[71] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[72] and “Other considerations”[73] The Primary Considerations are set out in paragraph 13(1) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[72] The Direction, paragraph 13.
[73] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[74]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[75]
[74] [2018] FCA 594.
[75] Ibid, [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decision-maker’s application of the primary considerations and other considerations are summarised as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I now turn to addressing these considerations.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that 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.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(1)The nature and seriousness of the non-citizen’s conduct to date; and
(2)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
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 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above[76], the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
[76] Factor (b) refers to the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. This principle is not relevant to the present application.
Factors (a) and (b) of paragraph 13.1.1(1) of the Direction provide that violent and/or sexual crimes, and crimes of a violent nature against women or children, are viewed very seriously. I have found that in late 2003 the Applicant was violent towards a female partner.

It was contended on behalf of the Applicant that the deeming provisions in the Direction relating to violent offences have no application because he has not been convicted of any violent offence. It is correct that the Applicant was not convicted in relation to these reported incidents of domestic violence. However, paragraph 13.1 of the Direction requires an evaluation not only of a non-citizen’s offences but also of their conduct. Accordingly, the Applicant’s violent conduct towards a domestic partner is relevant to my assessment of the nature and seriousness of his conduct to date. Threatening and causing physical injury to a female partner is objectively serious conduct and must weigh in favour of non-revocation. However, taking into account that this conduct occurred in 2003, and there is no evidence of any more recent conduct of this kind, I give it limited weight. There is also the incident when the Applicant injured a female police officer while resisting police (dealt with more fully under Factor (c)). I give some limited weight to that.
Factor (c) of paragraph 13.1.1(1) of the Direction provides that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties, are serious. The Applicant has twice been convicted of “assault or obstruct police”. I am satisfied that, with respect to one of the offences, the Applicant was not violent. With respect to the other offence, the Applicant admits that he refused to comply with a direction to exit his cell, and he resisted and struggled violently with police when they tried to convey him from his cell to a padded cell[77]. The Police Court Brief states that an officer sustained an injury to her arm.[78] This incident was preceded by the Applicant deliberately knocking over his food tray, spilling its contents.
[77] Transcript, page 57, line 43 to page 58, line 9.
[78] Exhibit G2, Supplementary G-Documents, G-12, page 463.
It was contended on behalf of the Applicant that he was convicted on the basis of obstructing, not of assaulting, police. The learned sentencing Magistrate who sentenced the Applicant for this offence referred to the offence as “obstruct police”.[79] He also ordered the Applicant to pay compensation to the injured police officer[80] which indicates that his Honour accepted that the Applicant had caused the injury. I find that, regardless of whether the Applicant was convicted of assault or obstruct, he resisted police, struggled violently with them, and in doing so he injured a police officer.
[79] Exhibit G1, G-Documents, G-2, page 34, line 28.
[80] Ibid, lines 29 to 32.
The Applicant gave evidence that he had been in the watch house between nine and 10 days, he had not been allowed to shower during that time, and he wanted to be transferred to the gaol so he could settle in. He said his cell had not been cleaned during the period, and “… it was just little things that like that just sort of ticked me”.[81]
[81] Transcript, page 58, line 19.
The Applicant said he did not recall hitting the police officer who was injured.[82] He added that he would have happily gone to the padded cell if the police had not been trying to take him “down to the ground” which he saw as the police showing their power.[83] It is understandable that going for several days without being able to shower, in a room that was not clean, could cause frustration and discomfort. This does not excuse the Applicant’s behaviour. The Applicant did not express regret or remorse for his actions or for causing injury.
[82] Transcript, page 58, line 35 to 38.
[83] Transcript, page 58, line 43 to page 59, line 2.
The other offence of assault or obstruct police arose from the police executing a prison warrant. According to the police court brief, they entered a residence, saw the Applicant awake in bed and told him to get on the ground. The Applicant did not comply and had his hands under the blanket. The police told him to take his hands out from under the blanket, then forced him out of the bed and onto the ground. The Applicant rolled over and had his hands under his body, the police told him to take his hands out from under his body, he failed to do that, and the police forcibly removed his hands from under his body.[84] The Applicant gave evidence that he was asleep when the police officers entered the room, he slid out of bed, and he was smacked on the back of the head and handcuffed. He said he was doing what he was told, and did not obstruct the police.[85] He was convicted of obstruct police in relation to this incident and I am satisfied that he did what the police allege.
[84] Exhibit G2, Supplementary G-Documents, G-12, page 486.
[85] Transcript, page 60, line 25 to 41.
These offences demonstrate an antagonistic and disrespectful attitude to the lawful authority that governs the community to which the Applicant now seeks to be returned. Factor (c) weighs moderately in favour of non-revocation.
Factor (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker to have regard to the sentences imposed by the Courts for the Applicant’s crimes. The imposition of a custodial term is normally a measure of last resort in the hierarchy of sentencing options available to a sentencing Court, and in the Applicant’s case there is no doubt about that. The Applicant had the benefit of non-custodial terms on the first ten occasions that he came before courts for sentencing. There was initially a clear effort by the courts to use fines and community based orders to stop the Applicant from offending without taking the drastic step of depriving him of his liberty. In addition to fines in varying amounts, he was given a community service order[86] in 2009, probation in 2010, a suspended sentence of imprisonment in 2011, and an extension of that suspended sentence later in 2011. However, even as the severity of these community based orders increased, the Applicant continued to offend, breaching every order.
[86] Community Service Orders contain an obligation not to commit offences.
The Applicant’s first custodial sentence was six months imprisonment in 2011, concurrent with other shorter periods of imprisonment, and he served two months of that sentence. His second custodial sentence was in 2014 for a period of 18 months, concurrent with periods of 12 months, three months and two months, and he served eight months of that sentence (in pre-sentence custody). His third was in 2015 for three months in total, and he was required to serve two months in custody. His fourth was five years and six months imprisonment with a non-parole period of 18 months, concurrent with periods of 18 months, 12 months and six months (and he had a non-parole period of 18 months). The second and fourth sentences in particular indicate that the sentencing court considered his offending to be very serious.
Factor (e) of paragraph 13.1.1(1) of the Direction refers to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. The Applicant committed some 70 offences and some 52 traffic infringements in 16 years. His offending is certainly frequent.
The Applicant’s initial drug offending involved possession of relatively small amounts of cannabis. By 2017 he was running a drug trafficking operation with over 70 customers and he was being paid in cash and stolen goods. It was contended on behalf of the Applicant that the drug trafficking offence was uncharacteristic in terms of the Applicant’s drug offending. However, I consider that it represents more of an escalation in the seriousness of his offending rather than a change in the nature of it. In 2013, there are indications that the Applicant was supplying drugs: police found him in possession of multiple clip seal bags containing different types of amphetamine with a total weight of 18.6 grams and four mobile phones. In 2016, police found 30 grams of cannabis hidden in the roof panel of a car he had hired. These quantities, and the circumstances surrounding their discovery, strongly suggest an intention to supply to others. I find that there was a trend of increasing seriousness to the Applicant’s drug related offending.
The Applicant’s weapons related offending appears to have been serious from the outset, initially involving a telescopic baton, nunchucks, two metal pistol crossbows and a flick knife with a sharpened double blade on various occasions. He later had tasers and capsicum spray. While there is no discernible increase in seriousness, the offending is certainly frequent and persistent, as is his offending in its totality.
It is particularly concerning that the Applicant continued to offend after being given the benefit of community based orders and a suspended sentence. Furthermore, he continued to offend after serving sentences of imprisonment and having his visa cancelled. Indeed, his most recent offence was committed (in immigration detention) after having served multiple sentences of imprisonment and having his visa cancelled for the second time.
The Applicant attributes his offending to his drug dependence. Specifically, in relation to the drug trafficking, he gave evidence that “I was getting my fix out of it, yes, but other than that there was - yes, that’s all it was, really”.[87] However, in 2019 the learned sentencing Judge found that the Applicant’s drug trafficking operation had a level of sophistication to it and that he was not only doing it to make enough money to support his addiction. Further, it is not apparent to me how the Applicant’s dependence on drugs caused him to commit numerous traffic offences and persistently have unlawful possession of weapons. I am satisfied that the Applicant was dependent on methylamphetamine and that many of the offences arising from his possession of drugs and drug related paraphernalia are directly attributable to that dependency. However, I do not accept that his drug dependency contributed to his traffic offending (except for the drug driving offence) or his unlawful possession of weapons and restricted items. Further, I do not accept that the sole, or even primary, purpose of his drug trafficking operation, with its size and level of sophistication, was to support his drug addiction. The Applicant’s criminal and traffic record demonstrates a long-standing willingness to break the law that is independent of his drug dependency.
[87] Transcript, page 62, lines 44 to 46.
Considering the frequency of the Applicant’s offending and the increase in the seriousness of his drug related offending, this factor (e) weighs heavily in favour of non-revocation.
Factor (f) of paragraph 13.1.1(1) of the Direction refers to the cumulative effect of repeated offending.
In 2017 and 2018, the Applicant promoted and circulated methylamphetamine in the community over an extended period to more than 70 people. Every time he supplied drugs he committed an offence although he was ultimately convicted of one offence of trafficking (that encapsulated multiple instances of supplying) rather than multiple offences of supplying. Methylamphetamine is a drug of dependence as the Applicant well knows. Dependence on illicit drugs is harmful to the health and well-being of the addict and it often leads to drug related crime. Again the Applicant well knows this as he was accepting stolen goods as payment for the drugs he supplied. The more methylamphetamine that is circulated in the community, the greater the potential for harm to members of the community. Further, by accepting stolen goods as payment, he encouraged theft. The cumulative effect of his repeated drug related offending is very serious.
There is no evidence that the Applicant used the weapons that he illegally possessed. Likewise, many of the traffic offences could have caused harm to persons or property, but there is no evidence before me that they did. Accordingly there is no specific cumulative impact of repeated offending with respect to these types of offences.
In general, the Applicant’s repeated offending has consumed a great deal of police resources as well as burdening the criminal justice system and the prison system.
Over-all, the cumulative effect of the Applicant’s repeated offending, particularly his drug offending, weighs heavily in favour of non-revocation.
Factor (h) of paragraph 13.1.1(1) of the Direction refers to 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.
The Applicant ran a drug trafficking business after (1) he was notified of a decision to cancel his visa (2) he asked the Respondent to revoke that decision, and (3) he was notified that the decision had been revoked, and given the following warning:
Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.[88]
[88] Exhibit G1, G-Documents, G-2, page 137.
The Applicant signed an acknowledgement that he had received the letter containing the warning. He does not dispute having received the letter or claim not to have understood its contents.
Having been given the opportunity to return to the wider Australian community, and having been warned not to re-offend, the Applicant engaged in offending that was more serious than his previous offending. Furthermore, it was premediated offending. Running a drug trafficking operation required planning and organisation.
Then, after his visa was cancelled for the second time as a result of that serious offending, and after the Applicant asked for that decision to be revoked, he re-offended while in immigration detention.
Factor (h) weighs extremely heavily in favour of non-revocation.
Factor (i) provides that where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention is serious. The Applicant was found with two types of dangerous drugs in a speaker belonging to him while he was in immigration detention. He admitted responsibility at the time and he was duly convicted of two offences possession of dangerous drugs. Despite his denial to the Tribunal that he owned the drugs, I find that he did. Accordingly, this conduct weighs convincingly in favour of non-revocation.
I do not consider factor (g) of paragraph 13.1.1(1) of the Direction applies to the Applicant’s offending or circumstances, so it does not require consideration.
The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, combined, weigh heavily against revocation of the reviewable decision.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·Paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·Paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Applicant ran a business distributing an illicit drug of dependence in the community. The nature of the harm from such activity includes addiction, poor health and crimes committed against innocent members of the community either to acquire drugs or as a result of consuming them. In this case, the Applicant was prepared to accept the proceeds of crime (stolen property) as payment for the drugs he supplied. There is also the misery caused to the families and loved ones of addicts as they suffer indirectly. The trade in illicit drugs puts a significant burden on the medical and criminal justice systems.
The Applicant’s traffic offences include serious speeding offences and one racing offence, as well offences of driving under the influence. Road rules are intended to protect the safety of the community. Persons who drive at well over the speed limit and race other vehicles create an increased risk of collision thereby putting other road users at risk of injury or death. I am cognisant that the Applicant’s previous driving offences have not, on the evidence before the Tribunal, resulted in harm to any person. However, the risk of harm from that sort of behaviour is real and substantial.
While there is no evidence that the Applicant used the tasers, telescopic baton, flick knife, nunchucks, crossbow or capsicum spray that he owned, his possession of weapons of that calibre is concerning as it creates the potential for serious harm to individuals or the Australian community.
The Applicant has demonstrated a defiant attitude towards police in the past and on one occasion he caused injury to a police officer in the course of performing her duties. The nature of the harm to police should the Applicant engage in this sort of behaviour is obviously that police officers are hindered in performing their duty and they could sustain injury.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal conduct of this type includes harm that is very serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The persistence of the Applicant’s offending is extreme. He has continued to offend over many years despite increasingly severe interventions by the courts including lengthy periods of imprisonment and the threat of deportation.
It was contended on behalf of the Applicant that he has some mental health problems which have contributed to his drug dependency, and that his drug dependency was the primary contributor to the trafficking offence.[89] However, he has never sought, and does not have, a diagnosis. The Applicant’s mother and sister have referred to defiant behaviour. The Applicant’s mother says the Applicant lacks confidence and shows many signs of depression including excessive sleeping, lack of motivation and low self-esteem.[90] She says his drug addiction has made that worse with deeper moods and episodes of self-harm.[91] The Applicant says, in his statement, that he suffers from “chronic low mood” and he is currently taking medication to deal with “cravings” for drugs[92]. He says the medication calms him down when he feels agitated.[93] I accept the evidence of the Applicant and his family, however there is no clinical information before me about the Applicant’s mental health and how it may affect his drug dependency or his prospects of rehabilitation.
[89] Exhibit A1, Applicant’s SFIC, paragraph 19.
[90] Exhibit A3, Affidavit of Sonia Julie Kerry, 27 February 2020, paragraph 12.
[91] Ibid.
[92] Exhibit A5, Applicant’s Statement, 20 March 2020, paragraph 74; Transcript, page 81, lines 41 and 42.
[93] Transcript, page 67, lines 35 to 44.
The Applicant has only once engaged with a drug rehabilitation service. That was a residential rehabilitation facility where, he says, living conditions were terrible and illicit drugs were freely available.[94] After that experience, he did not engage with any other rehabilitation service.
[94] Exhibit A5, Applicant’s Statement, 20 March 2020, paragraphs 61 to 62.

The Applicant says that when he was incarcerated in 2015 he did some NA [Narcotics Anonymous] classes where “… everyone just speaks about their past and all that”[95] and during his most recent period of incarceration, before he was transferred to immigration detention, he did a short substance-abuse course[96]. When asked about this short substance-abuse course, the Applicant said it involved identifying triggers and how to avoid them. When asked if he thought the course had helped he said:
“Like I haven’t been out in the community yet so I haven’t really put it to the test, but like I-yes, if you-if you do use what they say and do it like they-they teach you, you will have a bit of success with it, yes, I think.”[97]
[95] Transcript, page 64, line 1 to 5.
[96] Transcript, page 64, lines 6 to 8.
[97] Transcript, page 64, lines 44 to 47.
The Applicant has provided a Relapse Prevention Plan that he prepared while incarcerated.[98] It indicates that the Applicant has thought about some of his triggers in relation to his methylamphetamine use and what sort of action he can take to avoid those. The plan is dated in July 2019. Illicit drugs were found in his possession while in Immigration Detention after this plan was made which calls into question the Applicant’s commitment to executing the plan.
[98] Exhibit G1, G-Documents, G-2, pages 92 to 95.
The Applicant has provided letters of support from family and friends. Most of these people provided letters of support the first time the Applicant’s visa was cancelled. However, there is additionally a letter from a relative of the Applicant who is himself a recovering addict, and has been sober for around four years. He says that the Applicant reached out to him wanting to know how he “got clean”. He says that the Applicant has expressed great interest in the Narcotics Anonymous program and shown enthusiasm towards changing his life.[99] A letter from the Applicant’s sister[100] corroborates this, and I accept it.
[99] Exhibit G1, G-Documents, G-2, page 89.
[100] Exhibit G1, G-Documents, G-2, page 85.
The Applicant’s interest in attending Narcotics Anonymous if he is returned to the community is a positive sign. However, that is merely an initial step towards rehabilitation. His previous participation in Narcotics Anonymous while in custody in 2015 was not enough to stop him from subsequently re-offending.
The Applicant has been prescribed medication while in detention which he says helps with his cravings for drugs.[101] In evidence he described the medication helping with “urges” which he also describes as feelings of agitation.[102] When he was asked if those feelings would normally make him want to use methylamphetamine. He said:
“Like, meth, like with the meth it sort of-it’s the sort of the lifestyle thing as well, like it’s not just the drug itself. Like, it’s everyone around, like all my-not friends-but all the people around me.”[103]
[101] Exhibit A5, Applicant’s Statement, 20 March 2020, paragraph 74; Transcript, page 81, lines 36 to 42.
[102] Transcript, page 67, lines 38 to 45.
[103] Transcript, page 68, lines 5 to 7.
I accept that the Applicant is now on medication that helps him manage cravings for methylamphetamine. I note however his evidence that, for him, the urge to consume methylamphetamine is not only physical but related to lifestyle and social influences.
When the Applicant was asked if he would now act differently if another crisis like his friend’s suicide were to happen, he said:
“Well if I was to stay…I need help with my habit, with my addiction, I’d go straight away and start that process and…just change my whole life really. Like I’ve got to change everything…I’ve just got to live a completely different life if I’m to succeed sort of thing. And, like I’ve always had the support from my parents and all my family but I’ve never really taken it. At this time…I will…Like my parents go above and beyond for me and I…don’t…want to let them down again…”[104]
[104] Transcript, page 69, line 1 to 18.
This is a strong statement. The Applicant expressed similar determination the last time his visa was cancelled and he went on to establish a drug trafficking operation. The Applicant’s ability to abstain from drug use, with the help of his medication, in an unregulated environment is untested, as is his commitment to doing so. Nor has the Applicant expressed an intention to obtain a mental health diagnosis despite it being contended on his behalf that his drug use is related to underlying mental health issues.
As I have observed, not all of the Applicant’s offending appears to be drug related. The Applicant’s traffic offending, his penchant for weapons and restricted items, and his behaviour towards the police demonstrate disrespect for the law, the safety of the community, and those who enforce the law.
It was contended by the Respondent that the Applicant shows little insight or remorse, citing his tendency to minimise his offending. I respectfully agree. Not only that, he denied being violent towards a female partner, he denied obstructing police when they entered the residence where he was staying, and he sought to justify his violent struggle with police while in custody.
In response to the first visa cancellation, the Applicant put forward reasons why that decision should be revoked. They were essentially that: he had learned his lesson and was determined not to re-offend; he needed his family support and external support agencies in Australia for his rehabilitation; and his deportation would adversely impact on his mother’s health. He has put forward those same reasons this time, and in addition, he claims that he cannot live independently because he has spent the vast majority of his life living with his parents.
In a statement provided to the Tribunal the Applicant says that he is genuinely remorseful for the impacts that his offending has had on his family and the broader Australian community.[105] In his request for revocation it is contended on his behalf that he is:
“…confident that there is no significant risk that his past conduct will be repeated, on account of the support he has from his family and future support of counsellors, social workers and psychologists that he hopes to deal with.
In order for this to occur he will need the unwavering support of his family, who are all Australian citizens and will reside in Australia permanently.”[106]
[105] Exhibit A5, Applicant’s Statement, 20 March 2020, paragraph 73.
[106] Exhibit G1, G-Documents, G-2, page 75.
However, apparent remorse, the existence of external support agencies, the support of the Applicant’s family, his mother’s health problems, the threat of prison and the threat of deportation did not prevent him from re-offending after the first decision to cancel his visa was revoked. Further, he admitted in his oral evidence that he did not engage in any external support services.[107] The fact that the Applicant operated a successful business (albeit illegal) for six months, rented a storage shed and had previously hired cars and used multiple mobile phones undermines the contention that he is not capable of living without his family’s help and I reject it.
[107] Transcript, page 68, lines 16 to 29.
The Applicant has identified parole as a reason that he will not offend if he is returned to the wider community.[108] He will be on parole until 31 July 2023[109]. However, the Applicant has a history of re-offending while subject to court orders to be of good behaviour, having re-offended while subject to a Community Service Order, Probation, a suspended sentence and a previous parole order.
[108] Transcript, page 67, lines 30 to 35.
[109] Exhibit G2, G-Documents, G-23, page 808.
The Applicant’s mother, father and sister gave evidence in the hearing. All three seemed to have a sense of helplessness with respect to the Applicant. The Applicant’s father was asked why he thought the Applicant would not reoffend this time around, he said:
“Yes, well, that’s a good question because each time he seems to become affected by drugs again but this time it just cannot happen… Even if I’ve got to quit my job to make it happen there is no alternative now, he has to do the right thing this time. We’ve all got to be on top of it. Obviously were we were just a little too lax when he was given his revocation last time.
…
There is no alternative after today. After this hearing there is no recourse at all, we all know that. He just has to do the right thing now.… I don’t know how I can commit or tell you how I’m going to commit to any more than I did last time but there is definitely no recourse from this one.”[110]
[110] Transcript, page 18, lines 8 to 18, and 26 to 31.
[Underlining added]
When the Applicant’s mother was asked why the Tribunal should accept that he would not reoffend again, she said:
“…I’m hoping that he knows that this is his final chance. He - he’s just got to sort himself out. He’s got no - no come back. If he messes up that’s it - it’s over. He knows that.”[111]
[111] Transcript, page 32, lines 44 to 46.
When she was asked how the Applicant knows that, she said:
“I have spoken to him. I’ve had Steven in tears on the phone and he - he knows that he’s got to sort himself out and deep down he wants to sort himself out and it’s just… You know, it got to him. He - he’s really got to step up and take control.”[112]
[112] Transcript, page 33 lines 1 to 5.
The Applicant’s sister gave evidence that she believes the Applicant will not reoffend because, in her opinion he has grown up somewhat, he realises he cannot keep making mistakes, and because he has been in regular contact with his cousin who has is a recovering addict.[113]
[113] Transcript, page 40 line 33 to page 34, line 14.
The Applicant’s family do not seem to agree on the best way forward for him, in terms of his rehabilitation, if he is returned to the community. The Applicant’s father gave evidence that, if it is necessary, he is prepared to take the Applicant to stay with a friend in Victoria, away from the environment where he has been committing offences.[114] He said he would seek some sort of rehabilitative assistance there. The Applicant’s mother gave evidence that he should live in the family home, and she seemed to consider residential rehabilitation to be an option.[115] The family home is in the Redcliffe area. The Applicant’s sister gave evidence that he must stay away from Redcliffe because “…there’s too many people that…will think it’s okay to come and see him and put him back into that same environment”.[116] She thought he would be better off engaging in a residential rehabilitation program at the Sunshine Coast, and then living in that area which is close enough for his family to help him in his day-to-day life but far enough away from Redcliffe.[117]
[114] Transcript, page 22, lines 22 to 25.
[115] Transcript, page 33, lines 27 to 30; page 34, lines 25 to 35.
[116] Transcript, page 42, line 46 to page 43, line 2.
[117] Transcript, page 43 lines 4 to 7.
The Applicant himself does not have a clear plan. His approved address for the purposes of parole is his brother’s residence in Scarborough. Scarborough is very close to Redcliffe. He thinks he should go with his father to Victoria in the short term, then move to the Sunshine Coast, where he has an offer of employment[118], but he has not contacted the Parole Board about obtaining permission to go to Victoria or to change his parole address.[119] The Applicant’s brother did not provide a letter of support of give evidence, although he has evidently consented to the Applicant living with him if he is released into the community. The Applicant and his family - who he says he relies on for his rehabilitation – do not have a clear plan for his rehabilitation if he is to be returned to the wider community. Moreover, even when he lived with his family, and had the support of his parents and sister, in circumstances where his visa had been cancelled and reinstated and they all knew that further offending could well result in deportation and/or imprisonment, the Applicant went on to establish a drug trafficking operation.
[118] Letter from a property maintenance business in Caboolture stating that the Applicant will be offered employment if he is returned to the community: Exhibit A9.
[119] Transcript, page 70, lines 1 to 20.
The Applicant claims to have been drug free since he was incarcerated on the most recent occasion. Even if I were to accept that, despite illicit drugs being found in his possession, his ability to abstain from drugs and from crime has not been tested in an unregulated environment. He has pointed to several matters that could show a changed attitude or could act as protective factors if he is returned to the wider community, however his path to rehabilitation is at a very early stage and I am not convinced that he is committed to rehabilitating himself. There is no independent, expert evidence concerning his mental health issues or his prospects of rehabilitation in terms of his drug dependency or his attitude towards the law. His family seem hopeful but disorganised in terms of helping the Applicant to turn his life around and they rightly recognise that it crucially relies on the Applicant wanting to do that. Given the Applicant’s history of breaching court ordered conditions to be of good behaviour, I am not satisfied that being on parole is enough to keep him from re-offending. I consider that there is a very high risk that the Applicant will re-offend if he is returned to the wider community.
The one qualification to that is in relation to traffic offences. The Applicant gave evidence that he obtained his license just before his last period of incarceration.[120] When asked if he could assure the Tribunal that he would not engage in further “hooning” type behaviour, he said:
“I’ve grown up, I guess. Like, it was just – it’s a long time ago. I was younger as well and, like, not long had a car and so I was sort of showing off and that, but I think I’m over that now, well over it.”
[120] Transcript, page 77, lines 18 to 19.
The Applicant’s traffic history shows no infringements between 2012 and March 2015, and there is no evidence before me of any infringements after that date. I am not satisfied that there is a high risk that the Applicant will commit further traffic offences if he is returned to the community.
Conclusion: Primary Consideration A
The Applicant’s offending and other conduct is, in its totality, very serious. Apart from traffic offending, there is a high risk that the Applicant will re-offend. The harm to the community from further offending includes very serious harm. Primary Consideration A weighs heavily in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·the nature and duration of the relationship between the child and the person;
·the extent to which the person is likely to play a positive parental role in relation to the child;
·the likely effect that any separation from the person would have on the child;
·The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·whether there are any other people who fill parental roles with the child; and
·any known wishes of the child.
The Applicant does not have any minor children of his own. He claims to have a “very special bond” with his sister’s five children[121] who are aged between four and 17[122]. He describes spending time with them in the Christmas holidays, helping his mother to babysit them (because he lived with his parents when he was not in prison), and playing with his nephews with remote-controlled cars.
[121] Exhibit A6, Applicant's Statement, 20 March 2020, paragraph 50.
[122] Exhibit A4, Affidavit of Joanne Yates, 27 February 2020, paragraph 4.
In an affidavit provided to the Tribunal, the children’s mother, the Applicant sister, says that the Applicant has had frequent contact with her children and they are close to him. Her eldest child, Child A, is the Applicant’s goddaughter. The Applicant’s sister says that when she asked Child A how she feels about the prospect of the Applicant being removed to the United Kingdom, Child A said:
“I worry about Uncle Steve’s mental health and don’t know how he would survive in England because he wouldn’t have Nan and Grandad there to help him and I also worry about how Nan would cope and what it would do to her.”[123]
[123] Exhibit A4, Affidavit of Joanne Yates, 27 February 2020, paragraph 24.
The Applicant’s sister gave evidence that Child A is aware that a friend of the Applicant’s died from a drug overdose in 2006, and Child A worries that the same thing will happen to the Applicant if there is no one around to support him.[124] She also gave evidence that Child A worries about the impact on the Applicant’s mother if he is deported.[125] The Applicant’s sister gave evidence that the Applicant has a particularly special bond with Child A and also with her 13-year-old son, Child B. She said Child B is very similar to the Applicant in personality and they enjoy doing the same activities.
[124] Transcript, page 45, lines 5 to 10.
[125] Ibid.
I accept that the Applicant has spent time with his nieces and nephews throughout their lives except for periods when he has been incarcerated. I accept that he has a positive relationship with each of them, especially Child A and Child B. I am concerned that Child A feels burdened with worry about the impact of the Applicant’s deportation (if that occurs) on the Applicant and on her grandmother. In this sense, the Applicant’s prior conduct is having a negative impact on this child.
All five children have a mother and father fulfilling parental roles and there is no suggestion that the Applicant would ever be required to fulfil a parental role. There is no specific evidence before me of the likely effect that separation would have on the children, although I infer that they would miss the Applicant being around and that Child B in particular would miss doing activities with his Uncle who is something of a kindred spirit. There is no evidence that the children are emotionally or financially dependent on the Applicant. The evidence does not indicate that any of the children have suffered from the Applicant’s absence while he has been incarcerated.
Child A is 17 years old (so will not be a minor for very much longer), Child B is 13 years old and the other children are 12, seven and four, respectively. Their mother gave evidence to the effect that she would not allow the Applicant to be around her children if he was using drugs,[126] and I am satisfied that the potential for the Applicant’s future conduct to negatively impact the children is limited. There is some potential for the Applicant to play a positive role in the lives of each of the children if he abstains from drugs and crime.
[126] Transcript, page 39, lines 41 to 46.
The Applicant will have electronic and digital means to communicate with his nieces and nephews if he is returned to the United Kingdom.

Taking all these matters into account, I find that revocation of the reviewable decision would be in the best interests of the Applicant’s sister’s children, and that more weight is attributable with respect to Child B. Over-all, Primary Consideration B weighs slightly in favour of revocation.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[127]
[127] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in
FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Analysis – Allocation of Weight to this Primary Consideration C
In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant arrived in Australia on a final basis when he was 12 years old and he has lived in Australian continuously for 23 years;
·He committed his first offence six years after relocating to Australia;
·he has committed some 70 offences that include trafficking in dangerous drugs, unlawful possession of weapons, receiving stolen goods and obstruct police;
·he has committed over 50 traffic offences including speeding at very high speeds;
·he has been brought before the courts for sentencing some 22 times and has breached the conditions of multiple community based orders;
·some of his offending involved a risk of serious harm to members of the Australian community;
·his offending overall reflects a disrespect for the laws that govern the community that he wishes to re-enter and a lack of regard for the safety of the members of that community;
·there is a high risk that if he is returned to the wider Australian community he will engage in the supply of illicit drugs which carries a very real risk of serious harm to individuals and the community, and I consider this to be an unacceptable risk;
·he was bullied at school in the United Kingdom and in Australia, and he suffered from poor self-confidence. At one point he was suicidal. He has had some mental health issues over the years that have never been the subject of a diagnosis and appear to be unresolved. It may be that these issues have made him susceptible to drug dependency however there is no clinical or expert evidence in that regard;
·he claims, and I accept, that he had gainful employment between 2000 and 2012. It is contended on his behalf that he used to help at an animal shelter although it is not apparent how often or when he did that. I accept that he has made a modest positive contribution to the Australian Community;
·his parents and sister will plainly be very saddened and worried if the Applicant is deported. His eldest niece will worry for the wellbeing of the Applicant and her grandmother if he is deported, and his other nieces and nephews will miss him; and
·there is evidence before me, which I accept, that his mother’s underlying illness (Type 1 Diabetes) is already adversely impacted by his incarceration and the cancellation of his visa. The stress has resulted in her not being able to manage her blood sugar levels which resulted in her losing consciousness recently[128]. The Applicant’s deportation will likely add to her stress with consequent negative impacts on her health.
[128] Exhibit A3, Affidavit of Sonia Kerry, 27 March 2020, paragraphs 17 to 22.
Conclusion: Primary Consideration C
The Applicant has repeatedly breached the trust of the Australian community by committing serious offences, by his repeated offending and by re-offending after being given the benefit of having a decision to cancel his visa revoked. It is highly likely that he will, again, breach the trust of the Australian community by engaging in further offending. The Applicant’s mother’s poor health and the impact that his deportation is likely to have on her and his other family members evokes sympathy. However, even taking that, and the other matters in the Applicant’s favour into account, I am satisfied that the Australian community would expect that the Applicant should not hold a visa, and that this consideration warrants a high degree of weight.
Primary Consideration C weighs heavily in favour of non-revocation of the decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to United Kingdom. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
The Applicant has lived in Australia continuously since he was 12 years old, and he is now 35 years old, meaning he has spent nearly two thirds of his life in Australia. He commenced offending when he was 18 years old, was six years after his arrival. On account of his youth when he relocated, the time he has been here and the fact that he did not commence offending soon after arriving in Australia, he is entitled to some measure of weight in his favour under paragraph 14.2(1)(a) of the Direction.
The Applicant has had some gainful employment and done some voluntary work of unknown duration. He has an offer of employment should he be returned to the wider Australian community. These matters add a modest measure of weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
With respect to paragraph 14.2(1)(b), the Applicant has spent 23 years in Australia. I accept that he has strong ties to his immediate family and he has positive relationships with his sister’s five children. These people are all Australian citizens.[129] There is no evidence of any positive social ties to the community. I am satisfied that the Applicant has significant familial ties to members of the Australian community. This also weighs in his favour.
[129] Exhibit G1, G-Documents, G-2, pages 99 to 110.
Overall, I am satisfied that that the strength, duration and nature of ties to the Australian community warrants the allocation of a moderate level of weight in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(f)the non-citizen’s age and health;
(g)whether there are any substantial language or cultural barriers; and
(h)any social, medical and/or economic support available to that non-citizen in that country.
At 35 years old, the Applicant is still reasonably young. He does not claim to have any medical problems. He has some undefined mental health issues and he currently takes medication that helps him manage the cravings and feelings of agitation that contribute to him wanting to consume methylamphetamine.
I have already rejected the contention that the Applicant is unable to live independently. I do not accept that the Applicant is any less able than the average adult to secure accommodation, have electricity connected, manage his money and attend to other day to day matters. Accordingly, I do not accept that he needs his family close-by to do those things for him. Further, he spent his first 12 years in the United Kingdom so it is not a totally unfamiliar environment.
In the Applicant’s Personal Circumstances Form that accompanied his request for the decision to cancel his visa to be revoked he stated that he has three uncles or aunts and five cousins in the United Kingdom. Of these, there is an uncle on his father’s side[130] whose wife suffers from alcoholism and a dependence on prescription medication[131], and there is an uncle and some cousins on his mother’s side. There is no information before me about the third uncle or aunt. His mother has contact with a couple of the Applicant’s cousins on her side[132], however the Applicant gave evidence that he has not spoken to any of them since he has been in Australia[133]. I am satisfied that the Applicant has some relatives in the United Kingdom but he is not close to them, and it is not known whether he can rely on them for social support.
[130] Transcript, page 19, lines 1 and 2.
[131] Transcript, page 21, lines 30 to 32.
[132] Transcript page 33, lines 22 to 25.
[133] Transcript, page 83, lines 19 to 25.
There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in the United Kingdom.[134] The United Kingdom is culturally and linguistically similar to Australia.
[134] Section 14.5(1)(b) of the Direction.
It was contended on behalf of the Applicant that the current global pandemic (COVID19) is crippling British life with the United Kingdom being in lockdown and stopping international flights. Without support the Applicant is liable to homelessness, and could find himself having to self-isolate without any accommodation. Further, with increased pressure on the health system, it is uncertain whether there will be services available to the Applicant.
The Respondent assured the Tribunal that the department will not remove a person from Australia where it is not safe to do so regardless of the Tribunal’s ultimate decision. The Respondent will make the appropriate assessments in consultation with the receiving country, the United Kingdom in this case, and the Applicant will not be returned unless and until it is safe to do so.[135] I accept that submission.
[135] Transcript, page 95, lines 34 to 43.
Australian and the United Kingdom are both affected by the pandemic and the situation here appears to be broadly comparable to the situation in the United Kingdom in terms of the restrictions that are in place and the increased burden on the health systems in each country. There is no evidence before me that the situation is markedly worse in the United Kingdom or that there are restrictions on securing short-term or long-term accommodation.
There is no evidence before me that the Applicant’s health needs would go unmet in the United Kingdom or that the medication he uses would be less available than it is in Australia due to the pandemic or otherwise.
Of course, if the Applicant were to remain in Australia, he would have guaranteed accommodation as he could live with his brother and he would have the help of his family. Initially, life will undoubtedly be more difficult for him in the United Kingdom, pandemic or not. However, to the extent that he may face some difficulty in re-establishing himself in the United Kingdom, this would only present as a short-term hardship and I do not accept that it would preclude his successful re-settlement there.
Accordingly, Other Consideration (e) weighs slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(i)international non-refoulement obligations: not relevant;
(j)strength nature and duration of ties: weighs moderately in favour of revocation;
(k)impact on Australian business interests: not relevant;
(l)impact on victims: neutral; and
(m)extent of impediments if removed: weighs slightly in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the discretion afforded by

s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation; and
·To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
161.
The decision under review is affirmed.

I certify that the preceding 161 (one-hundred and sixty one) paragraphs are a true copy of the reasons for the decision herein of Member Bellamy.

......................[sgd]...............................................
Associate
Dated: 9 April 2020

Date of hearing: 26 & 27 March 2020

Counsel for the Applicant Mr Aaron Hartnett

Solicitors for the Applicant: Mr Reynaldo Aquino

FC Lawyers

Solicitors for the Respondent: Mr Tal Aviram

Clayton Utz
ANNEXURE A
File No 2020/0471
Between STEVEN KERRY (Applicant)
AndMINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (Respondent)

Heard on Thursday, the 26^th day of March 2020
Friday, the 27^th day of March 2020

EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED

G1 G-Documents R - 13 FEB 20

G2 Supplementary G-Documents/Summonsed material R - 18 MAR 20

A1 Applicant’s Statement of Facts, Issues and Contentions A 6 MAR 20 6 MAR 20

R1 Respondent’s Statement of Facts, Issues and Contentions R 19 MAR 20 19 MAR 20

A2 Affidavit of Ian Kerry A 27 FEB 20 28 FEB 20

A3 Affidavit of Sonia Kerry A 27 FEB 20 28 FEB 20

A4 Affidavit of Joanne Yates A 27 FEB 20 28 FEB 20

A5 Applicant’s Statement A 20 MAR 20 23 MAR 20

A6 Statement of Ian Kerry A 22 MAR 20 23 MAR 20

A7 Statement of Sonia Kerry A 22 MAR 20 23 MAR 20

A8 DNA Testing A 6 AUG 19 23 MAR 20

A9 Work Reference A 18 MAR 20 23 MAR 20

[2020] AATA 869

9 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Date of hearing:	26 & 27 March 2020
Counsel for the Applicant	Mr Aaron Hartnett
Solicitors for the Applicant:	Mr Reynaldo Aquino
FC Lawyers
Solicitors for the Respondent:	Mr Tal Aviram
Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	G-Documents	R	-	13 FEB 20
G2	Supplementary G-Documents/Summonsed material	R	-	18 MAR 20
A1	Applicant’s Statement of Facts, Issues and Contentions	A	6 MAR 20	6 MAR 20
R1	Respondent’s Statement of Facts, Issues and Contentions	R	19 MAR 20	19 MAR 20
A2	Affidavit of Ian Kerry	A	27 FEB 20	28 FEB 20
A3	Affidavit of Sonia Kerry	A	27 FEB 20	28 FEB 20
A4	Affidavit of Joanne Yates	A	27 FEB 20	28 FEB 20
A5	Applicant’s Statement	A	20 MAR 20	23 MAR 20
A6	Statement of Ian Kerry	A	22 MAR 20	23 MAR 20
A7	Statement of Sonia Kerry	A	22 MAR 20	23 MAR 20
A8	DNA Testing	A	6 AUG 19	23 MAR 20
A9	Work Reference	A	18 MAR 20	23 MAR 20