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

[2020] AATA 2160

KYYV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2160 (7 July 2020)

Division:General Division

File Number(s):      2020/2244

Re: KYYV

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:7 July 2020

Place:Sydney

The reviewable decision made 16 April 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa, is set aside.

In substitution it is decided that the decision to cancel of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa made on 12 December 2018, is revoked.

.............................[SGD]...........................................

Deputy President J W Constance

CATCHWORDS

MIGRATION – mandatory cancellation – failure to pass the character test – where offending very serious – where low risk of reoffending – protection of the Australian community – best interests of minor children in Australia affected by the decision – expectations of the Australian community – strength, nature and duration of ties to Australia – decision set aside and substituted 

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501, 501CA

CASES

DKXY v Minister for Home Affairs [2019] FCA 495

FYBR v Minister for Home Affairs [2019] FCAFC 185

Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548

Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Deputy President J W Constance

7 July 2020

A: INTRODUCTION

1. This a tragic matter.  A tragedy for the victim who suffered, and continues to suffer, horrific injuries as a result of the Applicant’s totally irresponsible driving.  There have been consequences also for the Applicant and his family who have been separated and face the prospect of never being able to live together again in the country in which they made their home over 20 years ago.

2. I have no doubt that some in the Australian community will disagree with the decision I have reached, but it is the task of the Tribunal to apply the law and to exercise any discretion given to it in accordance with the law. Contrary to the views often expressed in the media, it is not the law of this country that every visa holder who commits a serious offence should be deported.  Had Parliament intended such a result it would have said so.

3. The Applicant is a 23-year-old citizen of New Zealand.

4. He first entered Australia in 1997 as a one-year-old.  He has lived in Australia as a permanent resident with his family since he was three years old.

5. On 20 July 2018, the Applicant was sentenced to imprisonment for two years and four months for the offences of dangerous driving occasioning grievous bodily harm and driving in a manner dangerous.[1] He was disqualified from holding a licence to drive a motor vehicle for three years commencing on 20 July 2018.

   [1] Exhibit R1 at 34-35.

6. By reason of his sentence of more than 12 months, on 12 December 2018 the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa was cancelled in accordance with subsection 501(3A) of the Migration Act 1958 (Cth) (the Act).[2] This decision is referred to in the Act as “the original decision”.

   [2] Exhibit R1 at 53.

7. On 16 April 2020, a delegate of the Minister decided not to revoke the original decision.[3] The decision of 16 April 2020, referred to as the “reviewable decision”, is the subject of this application for review.

   [3] Exhibit R1 at 22.

8. The reviewable decision was made on the basis that the delegate was satisfied that the Applicant did not pass the “character test” set out in the Act, and that there was not another reason why the original decision should be revoked.

9. The Applicant was released from prison on 19 November 2019.[4]  He was immediately transferred to immigration detention where he was being held at the time of the hearing of this application.

   [4] Exhibit R1 at 51.

10. For the reasons which follow, the reviewable decision will be set aside and it will be decided that the cancellation of the Applicant’s visa be revoked.

    B: BACKGROUND

11. Unless otherwise stated, the findings of fact in these reasons are based on the evidence of the Applicant. He provided statements filed on 21 May 2020 and 18 June 2020.[5] He gave evidence at the hearing.

    [5] Exhibit A1.

12. The Applicant was born in New Zealand and is a citizen of that country.  He migrated to Australia with his parents and younger brother in 1999[6] and has lived here ever since.  He has two sisters who were born in Australia.

    [6] Exhibit R1 at 37.

13. The Applicant was educated in Australia.  He left school at the end of Year 11 and obtained casual work as a machine operator.

    The Applicant’s criminal record

14. The Applicant’s criminal record is as follows:[7]

    [7] Exhibit R1 at 34-35.

Court date	Offence	Penalty/Sentence
July 2018 (Campbelltown District Court)	Dangerous driving occ GBH – drive manner dangerous	Imprisonment: 2 years and 4 months commence 20/07/2018 conclude 19/11/2020 Non parole period with conditions: 1 year and 4 months commence 20/07/2018 conclude 19/11/2019
	Never licensed person drive vehicle on road – first offence	S10A conviction with no other penalty
October 2012 (Campbelltown Children’s Court)	Assault with intent to take/drive vessel	Probation s33(1)(e): 18 months
	Steal motor vehicle	Probation s33(1)(e): 18 months
	Damage property by fire/exp >$2000	Probation s33(1)(e): 18 months
	Be carried in conveyance taken w/o consent of owner	Probation s33(1)(e): 12 months

Failure to pass the character test

1. It is not in dispute that, by reason of his criminal record, the Applicant does not pass the character test set out in the Act.

   C: THE RELEVANT LEGISLATION

2. Subsection 501(3A) of the Act provides:

   (3A) The Minister must cancel a visa that has been granted to a person if:

   (a)  the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   (ii)paragraph (6)(e) (sexually based offences involving a child); and

   (b)  the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

3. Paragraph 501(7)(c) provides:

   (7) For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c) the person has been sentenced to a term of imprisonment of 12 months or more …

4. Subsection 501CA(3) provides:

   (3)  As soon as practicable after making the original decision, the Minister must:

   (a)give the person, in the way that the Minister considers appropriate in the circumstances:

   (i)     a written notice that sets out the original decision; and

   (ii)    particulars of the relevant information; and

   (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

5. Subsection 501CA(4) provides:

   (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.

6. The power of the Tribunal to review the decision to refuse to revoke the cancellation of the Applicant’s visa is provided by section 500 of the Act.

   D: DIRECTION NO. 79

7. Pursuant to subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to revoke a mandatory cancellation, and thus the Tribunal’s power on review. The relevant direction is Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction), which commenced on 28 February 2019. Pursuant to subsection 499(2A) of the Act, the Tribunal is bound to comply with the terms of the Direction.

8. Subparagraph 6.1(3) of the Direction provides, in part:

   Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

9. Paragraph 6.2 provides general guidance and directs that the “factors that must be considered in making a revocation decision are identified in Part C of this Direction”.

10. Under the heading General Guidance, subparagraph (1) provides:

    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

11. Paragraph 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part C in order to determine whether the mandatory cancellation of the Applicant’s visa should be revoked. A copy of Part C is “Annexure A” to these reasons.

12. In paragraph 6.3, the Minister sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles are:

    (1)  Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)  The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)  A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)  In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)  Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)  Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)  The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

13. The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[8] Primary considerations should generally be given greater weight than the other considerations.[9]

    [8] Direction at [6.2(3)] and [8(1)].

    [9] Direction at [8(4)].

14. Paragraph 13(2) provides:

    In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)The best interests of minor children in Australia;

    c)Expectations of the Australian community.

15. Paragraph 14(1) sets out other considerations to be taken into account where relevant. It provides:

    In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    a)International non-refoulement obligations;

    b)Strength, nature and duration of ties;

    c)Impact on Australian business interests;

    d)Impact on victims;

    e)Extent of impediments if removed.

    E: THE ISSUE FOR DETERMINATION

16. I have set out subsection 501CA(4) of the Act earlier in these reasons (see paragraph 19). Before the power to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the preconditions to the exercise of the power have been met.

17. It is not in dispute that the Applicant has made representations of the kind referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that he does not pass the character test in subparagraph (b)(i) of the subsection. Therefore, it is necessary to decide whether “there is another reason [i.e. other than the Applicant’s passing the character test] why the original decision should be revoked”.[10]

    [10] Paragraph 501CA(4)(b)(ii) of the Act.

18. If I am satisfied of all the relevant requirements of paragraph 501CA(4)(b), then the cancellation must be revoked. To this extent, “may” in the subsection means “must”.[11]

    [11] Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 at [31].

    F: REASONING

    F1: Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct

19. I must have regard to matters set out in paragraph 13.1, which include:

    ·… the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community …;

    ·[t]he nature and seriousness of the non-citizen’s conduct to date;

    ·[t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[12]

    F1.1: The nature and seriousness of the Applicant’s conduct to date

    [12] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct of concern which may not constitute a criminal offence.

    Offences committed in 2012

20. In 2012, when he was 16 years old, the Applicant committed the offences of assaulting another with intent to take/drive a motor vehicle, stealing a motor vehicle, damaging property by fire/explosion and being carried in a conveyance without the consent of the owner.[13]  He was released on probation for 18 months.  The offences were committed in company with others.

    [13] Exhibit R1 at 35.

21. I do not have before me the police report or the record of court proceedings in relation to these offences.  Neither the Applicant nor the Minister required the production of the relevant court records.  The Applicant described the incident as a “carjacking”.  The owner of the car was not in the vehicle at the time but was assaulted when his vehicle was stolen.  The Applicant says that he does not recall how the owner was assaulted.  Access to the vehicle was gained by breaking a window with a rock.[14]

    [14] Transcript, 29 June 2020.

    Offences committed on 22 February 2017

22. When sentencing the Applicant in July 2018, Judge Townsden described the circumstances of his offences as follows:

    [The Applicant] has never held a driver’s licence in the State of New South Wales.  At the time of the collision, the Offender was driving a New South Wales registered Toyota Camry…with two passengers in the car – one in the front passenger’s seat and the other in a rear passenger’s seat. The second accused in this matter, whose trial is pending, and who also was involved in the collision is [redacted]. At the time of the collision, the accused [redacted] was the holder of a current New South Wales driver’s licence. At the time of the collision, the accused [redacted] was driving his New South Wales registered Subaru Impreza…

    The victim in this matter is [redacted]…At around 1.45pm on Wednesday 22 February 2017, [the Applicant] and the accused [redacted], whilst driving their respective vehicles, approached a roundabout…[the Applicant] and the accused [redacted] had been following each other for some time and both drivers had formed the intention they wished to drag race their vehicles against each other.

    [The Applicant] and the accused [redacted] turned right…and into lane 2 of 2, travelling south. At this time, [the Applicant] was leading with the accused [redacted] following closely behind. The accused [redacted] continued to chase [the Applicant] south…at a speed believed to be well about the posted 60 kilometres per hour speed limit.

    At this time the victim was walking from the northbound kerb…to the southbound kerb.

    [The Applicant] decided to let the accused [redacted] overtake him, and as a result to merge into lane 1 of 1. [The Applicant] failed to see that the accused [redacted] had also merged into lane 1, and as a result the rear near side of [the Applicant’s] vehicle impacted with the front offside of the accused [redacted’s] vehicle.

    As a result of the impact, [the Applicant] lost control of his vehicle and began to rotate. During this rotation [the Applicant’s] near side impacted with the kerb at the intersection…and began to flip. During this motion the vehicle impacted heavily with the victim, before it came to rest on its roof in the front yard…the victim came to rest near the overturned vehicle.

    Upon seeing the collision, the accused [redacted]…called emergency services.

    As a result of the collision, the victim suffered multiple injuries and was conveyed to…hospital.

    Whilst on the seen, both [the Applicant] and the accused [redacted] made admissions to detectives that they were drag racing, and after the mandatory tests they were placed under arrest and conveyed to…[the] police station. Both [the Applicant] and the accused [redacted] were offered the opportunity of interviews and during the interviews they both admitted to participating in a drag race with each other.[15]

    [15] Exhibit R1 at 39-41.

23. When he gave evidence before me the Applicant said that he did not know the other driver.  During the race the vehicle he was driving reached speeds of up to 150 kilometres per hour.  Two of his cousins were passengers in his vehicle at the time.

    Discussion

24. The Applicant’s conduct to date must be regarded as very serious.  By the age of twenty he had committed two series of serious offences – the first involving physical assault and stealing, the second causing catastrophic injuries to an innocent by-stander.  On both occasions the Applicant demonstrated a total disregard for the welfare of others.

1. Although he now says that he was wrong to do so, the Applicant sought to minimise his responsibility in the drag-racing by claiming that he was encouraged by his cousins.  However I take into account that he entered an early plea of guilty to the charges.  He still holds the view that he became involved in the carjacking by reason of his “hanging out with the wrong people.”[16]

   [16] Transcript, 29 June 2020. 

2. A further factor in assessing the seriousness of the Applicant’s conduct is his disregard for Australian law.  At the time of the drag-racing incident the Applicant had never held a licence to drive a motor vehicle and knew he was driving at a speed approximately 90km/h over the limit. When asked why he did not have a licence at the time he replied that he was “too lazy to get one.”[17]

   [17] Transcript, 29 June 2020.

3. Although the Applicant did not intend to injure anyone at the time he embarked upon the drag race, in fact, the result of his action was catastrophic. This alone adds to the seriousness of the offending conduct and was noted as an aggravating factor by Judge Townsden when sentencing the Applicant.[18]  

   F1.2: The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

   [18] Exhibit R1 at 47-48.

4. The Direction states that I must have regard to the following considerations cumulatively:

   (a)[t]he nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (b)[t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).[19]

   [19] Direction at [13.1.2(1)].

   F1.2.1: The nature of future harm

5. Should the Applicant further engage in conduct similar to that in which he has engaged in the past, there would be a significant risk of death or serious physical and/or psychological harm to members of the community. In addition, significant public resources would be expended in dealing with his anti-social conduct.

   F1.2.2: The likelihood of the Applicant engaging in further criminal or other serious conduct

   Sentencing Remarks of Judge Townsden

6. When sentencing the Applicant Judge Townsden said, in part:

   According to the [Pre-Sentence Report dated 24 April 2018], under the heading "Attitude to the Offending" the Offender attempts to minimise his actions by stating that he was encouraged by his passengers. However, he did express guilt in relation to the injuries sustained by the victim. He has been assessed as a low risk of reoffending.

   …

   I am satisfied the Offender has good prospects of rehabilitation and that he has no prior criminal convictions.  I am satisfied the Offender, when giving evidence, has shown remorse and is contrite, although noting his failure to undertake the Traffic Offenders Program.  It should be noted that he had some difficulty expressing himself in court, and articulating his appreciation of the consequences of his actions, which I accept.[20] [Emphasis added].

   [20] Exhibit R1 at 45 and 48-49.

7. The Applicant told me that he did not attend the Traffic Offenders Program as he was “too busy at work.”[21]

   [21] Transcript, 29 June 2020.

   Evidence of the Applicant

8. Having listened to and observed the Applicant as he gave evidence, I am satisfied that he appreciates the seriousness of his conduct and is genuinely remorseful of the injury and lifelong hardship he has inflicted on the victim of his irresponsible driving.

9. The Applicant is the eldest of the four siblings and now sees this as a position of responsibility to assist his parents and younger siblings.  He was living with his family at the time he was imprisoned and will return to live with them if he is free to do so.

10. For the two years before he was imprisoned, the Applicant was employed full-time as a machine operator.  He has been informed by his former supervisor that his previous position will be available to him should he be able to return to work in Australia.  While in prison the Applicant gained his forklift licence and was employed full-time as a leading hand forklift driver for about six to eight months of the time he was in prison.

11. During his imprisonment the Applicant completed the EQUIPS Foundation Program conducted by Corrective Services NSW[22] and the Gurnang Life Challenge Program,[23] both designed to assist him to avoid re-offending after he is released.

    [22] Exhibit A9.

    [23] Exhibit A10.

12. The Applicant is a member of his local Church and was an active member of the congregation prior to his imprisonment.  If he is free to do so he intends to return to taking part in his Church’s activities.

13. In his statement made 28 August 2019[24] the Applicant acknowledged, and expressed his remorse for, the harm he had caused the victim of his offending.  He stated that he had learned from his mistakes, his imprisonment and the suffering he had caused his family.  He believes he will not re-offend and recognises the assistance that the parole system will provide in addition to the support he will have from his family, his faith and his Church community.

    [24] Exhibit R1 at 78-83.

    Evidence of the Applicant’s mother (Mrs A.)

14. Mrs A. provided a statement dated 30 May 2020[25] and gave evidence.  I am satisfied that she was an honest witness who gave her evidence to the best of her recollection.  I accept her evidence.

    [25] Exhibit A12.

15. Mrs A. has talked to the Applicant about his offending and she believes that he is remorseful and has learnt from his mistakes.  She confirmed that the Applicant will return to live with her, his brother and his sister should he be free to do so.

    Evidence of the Applicant’s younger brother

16. The Applicant’s brother provided a statement dated 25 May 2020[26] and gave evidence at the hearing.  He impressed me as an honest witness who gave his evidence to the best of his recollection.  I accept his evidence.

    [26] Exhibit A11.

17. His brother described the Applicant as “the leading hand in our family” and said that the family would look after him if he was released from detention.[27]In his opinion the Applicant had learnt his lesson from the mistakes he had made.

    [27] Transcript, 29 June 2020.

18. In his statement he said the Applicant has a “very good work ethic, and has been working consistently since he was 16 years of age.”

    Statement of Pastor S. made 18 May 2020[28]

    [28] Exhibit A3.

19. Pastor S. is a Pastor of the Church which the Applicant attended with his father.

20. Pastor S. has known the Applicant as a dedicated member of the congregation for the last five years and supports his being able to remain in Australia.

    Statement of Mr N. and Mrs N. made 18 May 2020[29]

    [29] Exhibit A4.

21. Mr and Mrs N. are close family friends and relatives of the Applicant and have known him for the past ten years.  They refer to his participation in his Church and that, in their opinion, he will be financially supported by his immediate family.

    Statement of Mr U. and Mrs U. made 18 May 2020[30]

    [30] Exhibit A5.

22. Mr and Mrs U. are the Applicant’s paternal grandparents.

23. They state, in part:

    I know growing up, [the Applicant] is a smart young man, hard working and well behaved. He always listens to his parents and loves going to church on Sunday. [The Applicant] is the right hand of his mother, not only financially, but responsible for family duties around the house. He is a good role model to his younger siblings.

    [Mrs U.] his grandmother and I [Mr U.] will continue all family support endeavours to give [the Applicant] a fresh start in life. We will do our absolute best to stop him from falling into a cycle of disadvantage and will give him a better life.

    I believe that we will steer his life in a positive direction so he can become a value member of our society.

    Undated statement of Mr L. filed in the Tribunal on 18 June 2020[31]

    [31] Exhibit A6.

24. Pastor L. is a Youth Pastor of the Church the Applicant occasionally attended with his mother. 

25. Pastor L. has known the Applicant for over five years.  He states that the Applicant was committed to youth activities and demonstrated leadership and is a valued member of the Samoan community.  He believes the Applicant’s offending was a result of a lack of maturity and that he has “so much potential to do better for himself.” 

    Undated statement of Mr M. filed in the Tribunal on 18 June 2020[32]

    [32] Exhibit A7.

26. Pastor M. is a Senior Pastor of the Church attended by the Applicant and his mother. 

27. Pastor M. referred to the Applicant’s involvement in the Band and Youth Ministries of the Church.  He stated that should the Applicant be released he will return to the previous roles delegated to him by himself (Pastor M.) and the leaders of the Church.

    Discussion

28. The Applicant has repeatedly expressed remorse for his past conduct and has assured the Tribunal that he will not re-offend.

29. Several factors support the view that he is unlikely to re-offend should he return to live in the Australian community:

    (i)the experience of incarceration and migration detention over the past two years;

    (ii)the support which will be available to him from his family and Church should he be released;

    (iii)the awareness of the severity and lifelong disabilities and pain he has caused to the person injured by him;

    (iv)the assessment of the author of the pre-sentence report that the risk of the Applicant’s re-offending was low;

    (v)the assessment of Judge Townsden that the Applicant had good prospects of rehabilitation, together with the Applicant’s attempts to date to meet this expectation;

    (vi)the increased skills he has gained while in prison, which will improve his chances of long-term permanent employment;

    (vii)the absence of any adverse report as to his behaviour in prison or in detention;

    (viii)the likelihood that he will have a job to return to should he be released;

    (ix)the training he received in prison to assist his rehabilitation;

    (x)the realisation that further offending is likely to result in his deportation;

    (xi)his fear of permanent separation from his immediate family;

    (xii)his desire to remain a resident of the country in which he has lived since he was three years old,

    (xiii)the realisation that he may be forced to leave Australia which he has always regarded as his home.

30. On the other hand the Applicant has committed serious offences on two occasions within a period of five years, all of which were committed before he reached the age of twenty-one.  All the offences were committed with an element of impulsivity.  It is of concern that he may act on impulse again without consideration of the consequences of his actions.

31. Based on the evidence referred to in the preceding paragraphs I am satisfied that, while there is some risk, the risk of the Applicant re-offending is low.  The seriousness of his offending conduct has increased and on both occasions he appeared to give little, if any, thought to the consequences of his actions.  However, I am satisfied that he has matured and now realises the effect his incarceration and detention has had on his family and himself and that he will have support from his family and community should he be released and remain in Australia.

    F1.3: Protection of the Australian community from criminal or other serious conduct

32. By reason of the seriousness of the consequences of his actions I am satisfied that the protection of the Australian community weighs in favour of not revoking the cancellation of the Applicant’s visa.

    F2: Primary Consideration 2: Best interests of minor children in Australia affected by the decision

33. The Applicant referred to the following minor children in Australia who may be affected by the decision:

    ·his sister aged 15;

    ·his sister aged 10;

    ·four children (aged between two and eight years) of his cousins;

    ·an unspecified number of cousins under the age of 18 years.

34. In his statement filed 18 May 2020 the Applicant said, in part:

    15. I am the first born in a family of 4, and have two minor siblings that would be affected were this decision not revoked.

    16. As per our culture, my siblings look up to me as the first born, and my parents have expectations that I be a good role model to my siblings.

    17. I submit that my current circumstances do not show well in light of my responsibilities to my siblings, but I have learnt invaluable lessons about life and will use these not only to mentor my siblings about doing the right thing, but also the youth at our church in general.

    18. My siblings will be emotionally tortured by my removal from Australia, especially considering that I would not be able to return to Australia ever. I made my mistakes as an adolescent, and I believe it would be crucial for me to be there for my siblings as they go through the same stage of life.[33]

    [33] Exhibit A1 at 3.

35. In relation to the other minor children in his extended family, the Applicant said that before his imprisonment he would visit the children of his cousins regularly and would see the other children at family gatherings. 

36. Based on the evidence of the Applicant’s mother and brother and his own evidence, I am satisfied that the Applicant’s younger sister would be distressed should the cancellation of his visa not be revoked, but I am not satisfied that she would suffer any lasting psychological effects.

37. I accept the evidence of the Applicant that he is expected to play a leading role in his family and to provide guidance to his younger siblings, despite his past conduct.  I am satisfied that it would be more difficult for him to fulfil this role if he is not living in Australia.

38. Based on his evidence I am satisfied that in the past the Applicant has made a financial contribution to the support of his sisters.  However, he has not contributed in this way since his imprisonment and I am satisfied the younger sister is properly cared for by her mother.  In view of the evidence of the Applicant’s mother I cannot make a finding as to the present situation of the older sister other than that she is probably being cared for by her father.  The Applicant does not play a parental role in respect of either of the children.

39. The Applicant gave evidence that he has not been able to contact either his father or his elder sister since his parents separated.  Once he is released from detention he intends to make further efforts to locate his sister.

40. While the Applicant has interacted socially with other family members under the age of 18 I am not satisfied that this is a close or supportive relationship. I am satisfied that some of them may feel some distress if he was required to leave Australia but I am not satisfied that this would have a significant effect on any of them.

41. I am satisfied that it is in the best interests of the Applicant’s younger sister that the cancellation of his visa be revoked.  The Minister agrees.[34]

    F3: Primary Consideration 3: Expectations of the Australian community

    [34] Respondent’s Statement of Facts, Issues and Contentions dated 27 May 2020 at [48].

42. Paragraph 13.3 of the Direction provides:

    (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

43. In YNQY v Minister for Immigration and Border Protection,[35] Mortimer J said:

    76. In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

    [35] [2017] FCA 1466.

44. Since the judgement in YNQY, the Federal Court delivered its judgement in DKXY v Minister for Home Affairs.[36] After referring to the relevant paragraphs of the reasons in YNQY, one of which I have set out above, Griffiths J said:

    29. These paragraphs in YNQY appear in that part of her Honour’s judgment in which she was addressing a contention that the AAT had erred by failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.

    30. In my respectful view, her Honour’s reasoning in [76] and [77] of YNQY would be plainly incorrect if this reasoning is read as stating that the primary consideration of expectations of the Australian community will always weigh against revocation. The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an applicant …

    31. As [the Applicant] here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction, including those which are referred to in [23] above.

    (Emphasis in original.)

    [36] [2019] FCA 495.

45. After referring to those paragraphs in Uelese v Minister for Immigration and Border Protection[37] relied upon by the primary Judge in YNQY to support the proposition that the primary consideration of the expectations of the Australian community will invariably weigh against revocation of a mandatory cancellation, Griffiths J continued:

    33. … There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision-maker which is relevant to an assessment of this primary consideration. The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have “due regard” to the Government’s views on Australian community expectations. What amounts to “due regard” will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.

    [37] (2016) 248 FCR 296.

1. The Full Court gave further consideration to this question in FYBR v Minister for Home Affairs and Another.[38] In that matter the Court considered clause 11.3 of Direction 65, the predecessor to the Direction which is in the same terms as clause 13.3 of the Direction currently in force.

   [38] [2019] FCAFC 185.

2. In his reasons for dismissing the appeal, Charlesworth J said, in part:

   [61] The proper construction of cl 11.3 turns on two questions. The first is whether or not the clause expresses an expectation deemed by the government to be held by the Australian community. The second is whether the clause gives expression to an expectation that must of its nature weigh against the grant of a visa in every case.

   …

   [67] To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied at [54] of its reasons (extracted at [20] above). It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. I do not understand the judgment of Griffiths J in DKXY to differ from that of Mortimer J in YNQY in that respect. For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.

   …

   [75] Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

   [76] The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations” listed non-exhaustively in cl 12. The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.

   (emphasis added)

3. In agreeing that the appeal should be dismissed, Steward J said, in part:

   [90] However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker:…

   [91] The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.

   [92] There is also an important structural consideration, which is identified in the reasons of the primary judge (at [39]–[41]) and Charlesworth J (at [73]). It is that community expectations are to be taken into consideration (as a primary consideration) with other factors to inform the decision-maker’s decision. The consequence of that is twofold. First, not every factor relevant to the decision will inform the content of community expectations and, second, the ultimate decision may differ from the community expectations.

   …

   [102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.

   [103] The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in – between the community expectation will not express or require one or the other. That is a matter for the decision-maker.

   (emphasis added)

4. In light of the above, in this matter I have come to the conclusion that the expectations of the Australian community should not be given significant weight in view of the following circumstances:

   ·the Applicant has resided in Australia since he was three years old and has always regarded Australia as his home;

   ·most of his family reside in Australia and his deportation would isolate him from family support;

   ·as the eldest son of a family of Samoan heritage he is expected to assist the family and provide guidance to his siblings;

   ·deportation to New Zealand would be likely to result in his having less support in his re-integration into the community than if he remained in Australia

   ·although the injuries to the victim of his irresponsible driving are permanent and extremely serious, the Applicant did not intend to inflict those injuries;

   ·he has improved his skills while in prison and has been employed during that time.

5. In reaching this conclusion I have taken into account the views of the Australian Government that in circumstances where a visa holder has breached the trust of the community and has disobeyed the laws of Australia by committing a serious crime (as the Applicant has), he or she would normally expect that the visa would be cancelled.

   F4: Other considerations set out in the Direction

6. At paragraph 29 of these reasons I have set out paragraph 14 of the Direction, which mandates that I take into account further considerations as are relevant.

   F4.1     International non-refoulement obligations

7. There is no evidence to suggest that Australia’s international non-refoulement obligations are of relevance in this application or that Australia owes any such obligations to The Applicant.

   F4.2     Strength, nature and duration of ties to Australia

8. Paragraph 14.2 of the Direction provides:

   (1)  The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

   (a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

   (i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

   (ii)    More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

   (b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

9. The Applicant’s ties to Australia are very strong.  Australia has been his permanent home since he arrived here as a three-year-old and has resided here permanently for the last 20 years.  He resided with his immediate family of his parents and three siblings until he was imprisoned.

10. The other family members closest to him reside in Australia on a permanent basis.  In his Personal Circumstances Form lodged with the Department of Home Affairs in January 2019,[39] the Applicant listed five uncles and two aunts as close relatives.  When he gave evidence he said that he had approximately 30 cousins living in Australia.

    [39] Exhibit R1 at 64.

11. The Applicant left school at the end of Year 11 to assist his family.  He gained employment as a machine operator and worked until he was imprisoned.  For most of his time in prison he was employed full-time as a forklift driver.  When he was free to do so he was an active member of his Church congregation and worked with the Church’s youth groups.

12. I am satisfied that, when he was able, the Applicant made a positive contribution to Australian society.

13. Unfortunately, the Applicant began offending when he was only 16 years old.  This does diminish the weight which would be given to his ties to Australia.  However, as he was a minor at the time, I do not regard the weight to be given as significantly diminished.

14. I am satisfied that non-revocation of the cancellation would have a lasting and negative effect on the Applicant’s mother, younger sister and brother.  The family lived together before the Applicant was imprisoned and I am satisfied that he would return to live with his family in Australia if he is free to do so.  The circumstances of his father and elder sister are unknown but I accept the Applicant’s evidence that he wishes that his sister return to live with his mother and siblings.

15. In his statement made 25 May 2020, the Applicant’s brother said, in part:

    I have always looked up to my brother, and he’s been a huge support system for me and my siblings throughout many tough times over the years. [The Applicant] is a quiet, humble and family-oriented person and nothing means more to him than our family. Our family is very close and would be deeply affected if [the Applicant] were to be deported to New Zealand. It would also affect [the Applicant’s] many cousins and friends, church group, and members of the Samoan community.[40]

    [40] Exhibit A11.

16. In her statement made 30 May 2020, the Applicant’s mother said, in part:

    He is a great, loving and caring son and a great brother to his younger 3 siblings. My son is the backbone of our family and since he has left, our family has not been the same. He is a humble, young man and always put his family first. Our family will be deeply affected if he were to be deported to New Zealand as myself, his Father and siblings are here and no one close to him live in New Zealand who he can rely or depend on.[41]

    [41] Exhibit A12.

17. As his parents are now separated and there has been no contact between them since late last year, the role the Applicant is likely to play as the eldest son has become more important.  I am satisfied that the Applicant intends to assist his family as best he can.

18. I am satisfied that other family members would be concerned if the Applicant could not continue to live in Australia, but I do not give this significant weight.

19. I am satisfied that the Applicant has had strong and continuing ties to Australia for approximately the past 20 years.  This consideration weighs heavily in favour of revoking the cancellation of his visa.

    F4.3     Impact on Australian business interests

20. Although the Applicant has worked in Australia there is insufficient evidence for me to be satisfied that refusing to revoke the mandatory cancellation would have a significant impact on Australian business interests.

    F4.4     Impact on victims

21. The impact on the victim of the Applicant’s driving offences has been catastrophic and will remain with him for the rest of his life.  I do not have evidence of the effect on the victim of the Applicant’s earlier offences other than he would have suffered some distress at least and damage to his property.

22. I do not have any evidence to enable me to make a finding as to the effect of revocation of the cancellation of the Applicant’s visa on either victim.

    F4.5     Extent of impediments the Applicant may face if he is removed from Australia

23. If the Applicant is removed from Australia he will be returned to New Zealand. He is a citizen of that country and speaks English.  Although he left that country as a very young child he would be returning to a society very similar to that in which he has grown up.  He is young and healthy with skills which are easily transferable to employment in New Zealand.

24. The Applicant also has relatives in New Zealand with whom he has recently stayed.  Although these relatives are from his father’s side of the family it is reasonable to infer that they would be able to provide him some guidance in establishing himself in that country.

25. The Applicant told me that he would be “heartbroken” if he was required to leave his family. I accept that he would be distressed should this occur, but there is no evidence to suggest that he would suffer a mental illness.

26. This consideration does not weigh in favour of revoking the cancellation of the Applicant’s visa.

    PART G: THE BALANCING EXERCISE

27. In balancing the various considerations, the need to protect the Australian community weighs significantly in favour of refusing to revoke the mandatory cancellation of the Applicant’s visa.  This is so because of his repeated offending at a young age and the dreadful consequences of his actions.  However, these proceedings are not concerned with punishment.  The Applicant has shown a positive attitude to his time spent in prison and has actively worked towards rehabilitation by attending the courses he did and taking the opportunity to gain skills which will assist him in gaining employment.

28. In reaching my decision I have attached considerable importance to the support the Applicant is likely to receive from his family and his Church.  I have also taken into account that, for a short time at least, he will still be subject to the conditions of his parole on his release.

29. Nevertheless, there remains a risk, albeit low, that the Applicant will reoffend in a manner that causes physical injury to others.  The Applicant must realise that if he is able to enjoy the privilege of continuing to reside in Australia, it is the expectation of the Australian community that he will abide by the laws of this country at all times.  While the Australian community expects that the Applicant’s visa should remain cancelled, for the reasons I have stated I do not give this consideration significant weight in this application.

30. I have decided that both the interests of minor children in Australia and the expectations of the Australian community weigh in favour of revoking the visa cancellation.  These considerations are supported by the Applicant’s ties to Australia.  The remaining relevant considerations are of far less significance.

31. Having considered all the circumstances of this matter I conclude that the risk to the Australian community caused by revoking the cancellation of the Applicant’s visa is an acceptable one and is outweighed by the other considerations I have referred to above.

    PART H: CONCLUSION

32. The reviewable decision made 16 April 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa, will be set aside.

33. In substitution it will be decided that the decision to cancel of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa made on 12 December 2018, be revoked.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of

.............................[SGD]...........................................

Associate

Dated: 7 July 2020

Date(s) of hearing:	29 June 2020, 3 July 2020
Applicant:	In person (by video-conference)
Solicitors for the Respondent:	H Dejean, Australian Government Solicitor

ANNEXURE A

PART C

13. Primary considerations - revocation requests

(1)Under subsection 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c)) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non­ citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

(2)In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:

(a)Protection of the Australian community from criminal or other serious conduct;

(b)The best interests of minor children in Australia;

(c)Expectations of the Australian community.

13.1 Protection of the Australian community

(1) When considering protection of the Australian community, decision­ makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non­ citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of ce1iain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

(2) Decision-makers should also give consideration to:

(a)The nature and seriousness of the non-citizen's conduct to date; and

(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

13.1.1 The nature and seriousness of the conduct

In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:

(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

(e)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;

(f)The cumulative effect of repeated offending;

(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);

(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

13.2 Best interests of minor children in Australia affected by the decision

(1)  Decision-makers must make a determination about whether revocation is in the best interests of the child.

(2)  This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

(3)  If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4)  In considering the best interests of the child, the following factors must be considered where relevant:

(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

(c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or

(e)non-citizen's ability to maintain contact in other ways;

(f)Whether there are other persons who already fulfil a parental role in relation to the child;

(g)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(h)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

(i)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

13.2 Expectations of the Australian community

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

14. Other considerations - revocation requests

(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

(a)International non-refoulement obligations;

(b)Strength, nature and duration of ties;

(c)Impact on Australian business interests;

(d)Impact on victims;

(e)Extent of impediments if removed.

14.1 International non-refoulement obligations

(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

(2)  The existence of a non-refoulement obligation does not preclude non­ revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

(3)  Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

(4)  Where a non-citizen makes claims which may give rise to international non­ refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).

(6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

14.2 Strength, nature and duration of ties

(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

(i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

(ii)    More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non­ revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

14.3 Impact on Australian business interests

(1) Impact on Australian business interests if the non-citizen's visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

14.4 Impact on victims

(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

14.5 Extent of impediments if removed

(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

(a)The non-citizen's age and health;

(b)Whether there are substantial language or cultural barriers; and

(c)Any social, medical and/or economic support available to them in that country.