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

KZQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2055 (29 June 2022)
Division:GENERAL DIVISION
File Number: 2022/2884
Re:KZQV
APPLICANT

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

DECISION
Tribunal:Senior Member M Griffin QC
Date:29 June 2022
Place:Sydney

The decision under review is affirmed.
..............................[SGD]....................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Resident Return (subclass 155) visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record - Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – best interests of minor children in Australia – expectations of the Australian community – other considerations – extent of impediments if removed – impact on victims – links to the Australian community – the strength, nature and duration of ties to Australia – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA, 501E
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
SECONDARY MATERIALS
Direction No. 90 – 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
Senior Member M Griffin QC
29 June 2022

This matter concerns the Applicant seeking a review of a decision of the Respondent by the Delegate of the Minister dated 6 April 2022, refusing to revoke cancellation of his Resident Return (subclass 155) visa (visa). These proceedings come within the ambit of section 501CA(4) of the Migration Act 1958 (Cth) (the Act).
FACTS
The Applicant was born in Thailand and is a citizen of that country. He was born in 1985 and he is presently approximately 36 years of age. The Applicant arrived in Australia on 27 June 1991, at about the age of five, with his mother, and it is accepted that he has not left Australia since that time. The Applicant’s mother had formed a relationship with someone who continues to regard the Applicant as his son. The Applicant’s father is now deceased and died in traumatic circumstances when the Applicant was a young child. The mother resides in Australia but it appears the Applicant has little contact with her and vice versa. The Applicant has contact with his two sisters and stepfather and reference will be made to this below.
ISSUES
Because of various convictions for criminal offences, many of which are drug or drug-related, the most recent of which was on 13 December 2019 for inter alia supplying a commercial quantity of a prohibited drug, the Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.
This is not an end of the matter however, and the Tribunal is required to consider whether there is another reason why the original decision should be revoked. This requires the Tribunal to genuinely and fully consider all those matters presented by the Applicant, and which the Tribunal may itself deem to be relevant, in order to gauge whether there is another reason to revoke the original cancellation.
RELEVANT LEGISLATION AND POLICY
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
Section 501CA(4) provides that:
(4) TheMinister 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.
In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.
Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.
The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.
Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come 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 (paragraph 5.2(1));
(b)non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2));
(c)the Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph5.2(3));
(d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));
(e)decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).
Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.
Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:
(a)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).
(b)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).
(c)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).
These principles are of course dependent upon the facts and circumstances of each case.
The primary considerations are:
(d)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(e)Whether the conduct engaged in constituted family violence (Primary Consideration 2);
(f)The best interests of minor children in Australia (Primary Consideration 3); and
(g)Expectations of the Australian community (Primary Consideration 4).
The Tribunal must also take into account other considerations insofar as they are relevant.
These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims;
d)Links to the Australian community, including:
i) strength, nature and duration of ties to Australia; and
ii) impact on Australian business interests.
THE CHARACTER TEST
As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.
For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.
In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.
EXERCISING THE DISCRETION
In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.
Primary Consideration 1 – Protection of the Australian community
Paragraph 8.1 of Direction No. 90 provides:
(h) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No. 90 provides that 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.
The nature and seriousness of the Applicant's conduct to date
Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:
a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):
(i)causing a party to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c);
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph a)(ii), a)(iii) or b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Seriousness of offending and future risk
Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.
The Applicant has a lengthy history of offending, mostly in relation to drugs and drug-related activities that commenced as a juvenile. Not only has there been a demonstrated continuous history of drug-related offending but it is apparent from a review of his criminal convictions and the disposition of that offending conduct by way of sentence, that the Applicant has increased the level and seriousness of his offending. This is a matter of some concern to the Tribunal.
The Sentencing Judge who dealt with the last number of offences in 2019 referred to an agreed Statement of Facts. His Honour, in some detail, dealt with those facts, together with other relevant features in the sentencing process, including a number of factors that were subjective, relevant and properly regarded as diminishing the overall level of seriousness of the Applicant’s offending. The Learned Sentencing Judge also included issues relating to the likelihood of offending in the future. Although the Sentencing Judge noted that at the time of sentence the Applicant was remorseful for his behaviour, and indeed took that factor into account in the Applicant’s favour and sentence, nonetheless, the Tribunal notes that until that time, the Applicant chose to plead not guilty. The Tribunal, however, finds that the Applicant was entitled to his pleas of not guilty and draws no adverse inferences against the Applicant in terms of remorse then, or now.
The Tribunal is of course not bound by any findings of fact or indeed by the general approach taken by the Sentencing Judge in a matter such as this. The Tribunal is, however, satisfied that the remarks made by the Sentencing Judge on facts as they were found and agreed to by the parties accord with the Tribunal’s own independent view of the seriousness of the Applicant’s offending on that occasion of sentence. Generally, the Tribunal takes the view that the Applicant’s offending in the past has also been serious, continuous and increasing in levels of seriousness since he first came to the notice of authorities through his offending.
The Applicant’s offending on the last occasion is certainly, in the Tribunal’s opinion, the high-water mark of his offending and discloses a particularly serious level of offending which cannot be said to have been an isolated behaviour or set of behaviours. It is made the more serious by the purported provision of a weapon for the purpose of effecting, in the Tribunal’s opinion, the drug-related offences. Furthermore, the drug chosen to be supplied, commonly known as ice, is notorious for the detrimental way in which it affects users. It is hardly necessary to make the latter point except insofar as it underscores the Tribunal’s attitude to the Applicant’s offending and the particularly serious nature of the Applicant’s offending.
There are a number of factors which must be addressed and which are indeed, in the Tribunal’s opinion, in the Applicant’s favour that affect the consideration and the view that should be taken of the seriousness of the Applicant’s offending and the risk to the Australian community which are the two limbs of Primary Consideration 1.
The Tribunal viewed the Applicant’s oral evidence as demonstrating a genuine intention to reform and an attempt to keep away from drugs by various forms of rehabilitation. It is clear enough that the Applicant has taken steps, not only through courses during his prison/detention but also investigated future possible protective measures at Odyssey House and William Booth House. The Tribunal accepts that the Applicant has been drug-free since February 2022. The Tribunal also recognises, however, that this is only approximately 4 months ago and may suggest that it is relatively little time for him to demonstrate an ability to control his drug taking and association with drugs and all that conveys by reference to his past criminal conduct.

It is relevant to set out in the Applicant’s own words evidence which the Tribunal takes into account in this assessment under Primary Consideration 1:
21.      Currently, I have been clean for over two months or so. I last used crystal meth when I first came to detention around November 2021. I haven’t used since then. I am staying away from it. I have been attending SMART Recovery meetings online with Odyssey House once a week, for 1.5hours on Thursday. I have also completed courses like workplace drug use and anger management while in detention, I couldn’t do any courses while in goal, I wasn’t allowed.
22.      Currently, I have a relapse prevention program. I know that I need long term help. If I am released, I have to go to long term rehabilitation. It’s the only way I can make a real long-term change in my life. I have called William Booth and Odyssey House to start organising long term placement/program which is 12 months. I have been told that the intake forms can’t be finalised until I get released.
23.      I will be on Parole until 2024 if released and have strict conditions. I know this and its my plan to report within 24 hours if released.
24.      I also have plans to work fulltime but only after I finish my long term rehabilitation. My sister, [N], has expressed her willingness to help me find work around the area. I currently hold certificate in Sports and Fitness, that I would use in finding a job.
25.      My sister and the rest of my family have known about my long term drug use and they have been really supportive with my recovery and just getting my life back on track with rehab.
26.      I am working towards taking control over my life without having to rely on using drugs. I understand now that a huge part of my drug dependency is from my unresolved trauma, and I am now taking charge by starting to face what had happened to me and going through treatments. I have lived my best and worst in Australia and overall, it is my home. I am eager to go through all of the treatments and therapies in order to get better and move towards healing and becoming a better citizen of Australia.
It is clear enough that the Applicant has thought through, in a positive and realistic way, a perfectly reasonable approach to rehabilitation. The Tribunal has already concluded that the Applicant is genuine in this desire to reform.
There is a great deal of relevant evidence in the report of the psychologist, Dr Kwok, although Dr Kwok conducted a relatively short interview with the Applicant on 9 May 2022 for approximately 1½ hours. It is a particularly thorough and detailed report, dealing with his background, criminal offending, psychological and psychometric assessments, all of which are helpful to the Tribunal and support a positive view which the Tribunal has formed as to the Applicant’s likely future conduct.
In fact, the Tribunal accepts the conclusions that Dr Kwok has set out in paragraph 52 of her report and that conclusion is set out below for completeness and to assist in a helpful understanding of both Dr Kwok and the material which the Tribunal accepts in the Applicant’s favour.
49.       According to [KZQV], he has not lived in Thailand since five years old and he cannot speak the language. As such, he will likely experience psychosocial difficulties with regards to employment and training, accessing services in the community and connecting with prosocial associates and activities. Furthermore, although residential treatment for addiction and substance abuse is available in Thailand, these are mostly privately funded and expensive (around a few thousand Australian dollars a week). As [KZQV] needs long-term treatment that lasts several months to years, it is highly unlikely that he can afford this in Thailand. Treatment within the government sector is very limited. Without adequate treatment, [KZQV] has a high risk of relapse and returning to criminal activities.
50.      Identify if there are any undiagnosed mental health issues and/or drug and alcohol issues.
51.      Based on the current assessment, [KZQV] did not present as having an undiagnosed mental disorder; however, I would recommend a more comprehensive assessment by his future psychologist because his childhood history of parental death, alcoholism and neglect leaves him vulnerable to the development of psychopathological problems. [KZQV] has a longstanding history of substance abuse disorder. By definition, an individual needs to not meet the criteria of substance use disorder for at least 3 months to be considered as being in early remission. [KZQV] reported that his most recent use of illicit drugs was 2 months ago. He also admitted to using drugs in prison and in detention. Due to the severity of his disorder, he will need to attend a long-term residential program, such as Odyssey House or William Booth, if he is to remain in Australia. He will need to stay in the residential component of the program for at least 9 months. In addition to AOD counselling and group therapy, [KZQV] will have access to a psychologist and psychiatrist in the program. He will need to complete the residential component of the program before he returns to the workforce, although the program may allow him to engage in parttime/casual employment towards the latter end of residential treatment (i.e. when he is preparing to return to the community). After he completes residential treatment, [KZQV] will need to attend weekly outpatient individual counselling or group therapy for at least 9 months or until the therapist discharges him.
52.      This report is prepared for the purpose of exploring [KZQV] offending and his risk of recidivism. On the basis of my assessment, it is concluded that:
•          There is a high-moderate risk that [KZQV] will engage in further criminal conduct and be a risk/threat/danger to the Australian community if he does not engage in, and complete, high intensity structured treatment to address his criminogenic needs.
•          [KZQV’s] risk/threat/danger to women and children is indistinguishable from the risk among non-offenders.
•          [KZQV] will experience psychosocial difficulties if he is forced to return to Thailand. He is likely to receive treatment in Thailand and, therefore, there is a high probability that he will relapse and return to criminal activities.
•          Treatment for [KZQV] condition is available in Australia. He will need to attend a structured long-term residential program for at least 9 months to reduce his criminogenic needs if he is to remain in Australia. After he completes residential treatment, [KZQV] will need to attend weekly outpatient individual counselling or group therapy for at least 9 months or until the therapist discharges him.
The Tribunal notes that during the course of Dr Kwok’s evidence, she accepted that the Applicant apparently had, or was suffering from, a personality disorder which she regarded as a mental health disorder, and this is consistent with a view the Tribunal has formed, that the Applicant appears to have at least a substance abuse disorder which the Tribunal regards as a mental health issue. Furthermore, the Tribunal notes that should the Applicant be returned to Thailand, it would be more difficult for him to access treatment of the type and quality available in Australia for his drug addiction. This latter issue is relevant to impediments to the Applicant’s removal from Australia and is taken into account by the Tribunal under that consideration.
The Tribunal notes the pre-custody release assessment of the Applicant that he had been compliant with directions and was not regarded as a management risk. Although a low to medium risk assessment was made at that time, apparently in relation to the likelihood of future offending, the Tribunal, for reasons stated elsewhere, does not accept that low level of risk assessment. For reasons stated elsewhere, as will become apparent, taking into account Dr Kwok’s opinion, the Tribunal is independently of a far more serious view that the Applicant is a high risk of offending, even taking into account protective factors and risk management as identified by Dr Kwok. This will be discussed further below.
There are a number of protective factors also which assist the Applicant. The Applicant does not seem to have been in any trouble or indulged in misbehaviour whilst in custody/detention. This is in his favour. Furthermore, the Applicant will have the assistance and is genuine in seeking a job, relying on qualifications that he has attained whilst in custody/detention, including the likelihood of hope or prospect of being a physical trainer or the like.
His family, including his two sisters and stepfather, actively support him, which the Tribunal accepts. They will help the Applicant in his determination to reform and stay away from drugs as well as giving him practical assistance in terms of where he will live and provide genuine family support in his life should he remain in Australia. The Tribunal accepts the evidence of his family members as being honest and genuine in their regard and their desire to help the Applicant in whatever way they are able.
The Applicant will be on parole until 2024 and the controls proposed by that system will operate to exercise some control over the Applicant’s behaviour.
These matters listed above, also in combination with other factors, count in the Applicant’s favour. The Tribunal notes, however, that these protective factors, that is to say the presence of his family and their desire to help him, were undoubtedly present in the past, although in the Tribunal’s view of these matters, the Applicant has a reinvigorated and genuine desire now to reform, and his family also more keenly appreciate the need for control of the Applicant.
The Tribunal also notes that in 2013, the Applicant was warned by authorities of the likely loss of his visa should he continue to offend. That warning was clearly unheeded by the Applicant. This aspect of the Applicant’s past, although now a number of years ago must, in the Tribunal’s view, count against the Applicant in terms of an acceptance by the Tribunal that the Applicant is actually able to change his attitude and reform.
The Applicant’s stepfather believes the Applicant to have suffered from mental health issues because he is addicted to drugs, and suffers from anxiety and depression. Although there is no formal diagnosis of any major mental health illness, the Tribunal accepts that the Applicant has suffered from anxiety and depression in the past, particularly whilst incarcerated, and furthermore, accepts that the Applicant has suffered continuing trauma as the Applicant describes it, from serious assault committed upon him in 2012 which amongst other things, caused head injuries. The Tribunal, however, takes into account those factors mentioned by the Applicant and his stepfather as being relevant matters to take into account in the Applicant’s favour.
There are some further matters which the Tribunal considers relevant to the overall assessment of this consideration.
The Applicant accepted that he had taken drugs during his time in custody/detention, as late as February 2022. The Tribunal views this matter as a particularly concerning factor in the overall view of the Applicant’s determination to stay away from drugs and his relatively recent continuation into drug taking even whilst in custody/detention. This is not necessarily inconsistent with the Applicant’s stated determination to avoid drugs but merely highlights the difference between intentions and the attractive and seductive nature of drug taking that will so often overcome stated good intentions.
The Applicant attempted to explain to the Tribunal why it was that, even when presented with the logic that he must avoid drugs, the Applicant said of his past inability to do so that logically ‘it doesn’t connect to my brain at the time… my brain works like… slow’.
There are two matters that were referred to by the Applicant and although not pressed in any forceful way, are considered by the Tribunal relevant matters to take into account in the Applicant’s favour. The Tribunal will explain those matters.
The first is that the Applicant was the subject of a sexual assault whilst being held in juvenile detention. The Tribunal is prepared to accept that that occurred. Secondly, the Applicant himself expressed the view that an assault that occurred to him in 2012 affected and has continued to affect him. He was the victim of that assault and the Tribunal is prepared to accept that that assault, and the earlier sexual assault upon the Applicant have both combined to affect his behaviour and it is possible to accept, which the Tribunal does, that those matters have had some effect on the Applicant’s offending behaviour. Therefore, the Tribunal reduces, to a modest degree, the view of the Applicant’s continued offending by reference to those matters referred to and therefore reduces the Tribunal’s view of the culpability of the Applicant and his offending behaviour by virtue of those matters referred to.
The Tribunal notes, in general terms, that there is little evidence that the Applicant has had an opportunity to demonstrate that he has reformed, apart from those matters mentioned above, including good behaviour in custody/detention and also notes with concern, however, his drug-taking in detention in February 2022.
The Tribunal notes that in a pre-release report dated July 2021, that the Applicant’s assessment was ‘medium/low risk’ which made him ineligible to complete offence-related interventions in prison.
On 22 Oct 2013, the Department notified the Applicant that it had decided not to cancel his visa but he was given a formal warning that visa cancellation may be reconsidered if he committed further offences or otherwise breached the Character Test in the future and that disregard of that warning would count heavily against the Applicant if his case was reconsidered. The Applicant, in oral evidence, accepted that he received this original warning.
In the past, for example, on 10 March 2013, (G Documents, page 88), the Applicant said that he would reform. That did not eventuate.
As to proposed treatment, referred to by both the Applicant and Dr Kwok, there is no certainty when the Applicant would be able actually to access treatment; for example at William Booth House, access appears to be dependent upon whether a place (bed) becomes available.
On the whole of the evidence, the Tribunal is not satisfied, although there are many factors in the Applicant’s favour, that there is sufficient acceptable evidence, that should the Applicant be returned to Australian society, he will be able to avoid involvement in the taking and dissemination of drugs. In the Tribunal’s opinion, there is, on all the evidence, still a real prospect that the Applicant will fall into drug use and all that that conveys, including likely supply of drugs, should he be released into society from detention. This is a view formed by the Tribunal, even taking into account the considerable measures the Applicant and his family have put in place.
The Tribunal considers the Applicant’s past criminal conduct particularly serious and the last period of offending extremely serious. The Tribunal is not satisfied that the Applicant, although presently genuine in his attempts to reform, will actually be able to do so, particularly given his past history of drug offending which was continuous and escalating in seriousness.
The Tribunal considers that this primary consideration weighs particularly heavily against the Applicant.
Primary Consideration 2 – Family violence committed by the non-citizen
Paragraph 8.2(1) of Direction No. 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’ (emphasis in original).
Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).
Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));
b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));
c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and
d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).
There is no evidence to indicate that this consideration is relevant to this review.
Primary Consideration 3 – Best interests of minor children in Australia
Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.
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 (sub-paragraph 8.3(2)).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a)the nature and duration of the relationship between the child and Applicant. 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) (sub-paragraph 8.3(4)(a));
b)the extent to which the Applicant 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 (sub-paragraph 8.3(4)(b));
c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub-paragraph 8.3(4)(c));
d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

The Applicant has no children of his own but has an accepted relationship with two nephews, J and L, aged nine and five years respectively, the two children of his sister, N. The Applicant says that he regards those children ‘like my own’ prior to being incarcerated. The Applicant had a deal of contact with them, going to their home quite often. Even while the Applicant has been in detention, the Applicant has maintained communication through phone calls and face-to-face visits with both children. They are both old enough to appreciate their relationship with the Applicant and the Tribunal regards that relationship as important and appropriate.
The Applicant says and there is no reason to suppose otherwise that not only will he live with his sister, N, but that he will have a continuing relationship with both of the boys, one of whom has a rare type of kidney disease. The Tribunal accepts that the Applicant is genuine in asserting that he wishes to assist his sister with both children particularly because one of them is unwell and requires ongoing treatment.
Although the Applicant is not a biological parent, nonetheless, the Tribunal accepts his assertions that are also supported by his sister, that he has a relevant and important relationship with both nephews and that that relationship is expected to continue should the Applicant remain in Australia.
On the evidence before the Tribunal, the Tribunal accepts that this consideration weighs, to an important degree, in the Applicant’s favour.
Primary Consideration 4 – Expectations of the Australian community
Paragraph 8.4(1) of Direction No. 90 provides as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.
It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’ stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).
In the Applicant’s Statement of Facts and Contentions, it is conceded that this consideration weighs in favour of not revoking the visa cancellation. The further submission is made, however, that the Applicant has lived in Australia for most of his life and all his family and connections are in Australia and further, that he has contributed positively to the community through previous employment and, as such, the Australian community, may therefore give a degree of tolerance to his criminal conduct.
When considering this consideration, it is relevant to consider various levels of tolerance depending upon the circumstances of the case. In this case, clearly the Applicant has been a resident of Australia since he was a very young child. This is very much a matter in the Applicant’s favour and will be discussed relevantly below. It is, however, not inappropriate to take that matter, together with the other factors urged by the Applicant and referred to above in relation to this consideration. Overall, however, the Tribunal has come to the conclusion that this consideration, by virtue of the nature of the Applicant’s offending and its level of seriousness, must nonetheless ultimately weigh substantially against the Applicant.
OTHER CONSIDERATIONS
A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i.strength, nature and duration of ties to Australia;
ii.impact on Australian business interests.
International non-refoulement obligations
The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):
(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 Convention and Protocol non-refoulement obligations.
(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.
(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.
(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6)It may not be possible at the section 501/section 501CA stage to consider nonrefoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will 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 - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international nonrefoulement obligations.
There is no evidence to indicate that this consideration is relevant to this review.
Extent of impediments if removed
Paragraph 9.2(1) of Direction No. 90 provides:
(i)Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen's age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
Both the Applicant and the Respondent accept that the Applicant would face substantial language and cultural barriers if removed to Thailand. The Tribunal accepts the submission by the Applicant that he is also likely to lack social, medical and/or economic support. The Tribunal accepts this on the basis that the Applicant is 36 years of age and has not visited Thailand since migrating to Australia at the age of 5. He has spent no time in Thailand since arriving in Australia and has no ties or connections with Thailand. It is culturally a foreign country to the Applicant who does not speak, write or understand that language. The Tribunal has accepted that, in the past, the Applicant has had some issues with depression and anxiety and furthermore, that he has experienced stress levels sufficient to warrant some clinical intervention. Health issues, referred to above and likely to be faced by that Applicant will be more difficult for him in Thailand.
To those factors may be added the fact that the Applicant, who has in the past been a drug user, might likely relapsed into drug use if he is transplanted to a country as described above with his lack of any connection to it. Further, the Tribunal accepts the Applicant’s submissions that because of the death penalty imposed for certain types of drug-related offending in Thailand, the Applicant would be in real danger of severe punishment or death should he be returned to Thailand, and re-offend in that country. The likelihood of his re-offending is discussed elsewhere in these reasons.
Employment is likely to be difficult for the Applicant with no language skills or no cultural understanding of the country and in the short term, removing the Applicant to Thailand would be extremely stressful and perhaps continuing to be stressful in the longer term.
The Tribunal accepts, as the Applicant says in his own words in the statement of 8 June 2022, that ‘if deported, I have no clue on how I will survive in Thailand. I don’t know the language, customs, how to find work or access any services. I don’t know anyone in Thailand. I have no ties or much knowledge of the country. It is a foreign country. I ask for a last and final chance to stay in my home country of Australia’.
The words of the Applicant summarised powerfully and pleadingly this significant factor which the Tribunal views as a powerful and weighty factor in the Applicant’s favour.
Impact on victims
Paragraph 9.3(1) of Direction No. 90 provides:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims…
There is no evidence to indicate that this consideration is relevant to this review.
Links to the Australian community
Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.
9.4.1. The strength, nature and duration of ties to Australia
(j)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(k)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has lived almost his entire life in Australia, at least since the age of five years. He knows nothing other than Australian culture and life and has no relevant ties in any way to his country of birth. The Applicant’s immediate family are in Australia, his stepfather, two sisters and in-laws, and nephews, as well as his mother, although it is accepted that he has virtually no relationship, if any, at all with his mother. There are other family members including aunts, uncles and cousins, along with close family friends. The Applicant has been employed in a variety of capacities including as a labourer and tradesman at various times since commencing work and has contributed to the Australian tax-payer system.
It is clear on all the evidence that the Applicant has immense and deep ties to Australia and this is the only country with which he actually has any meaningful ties.
This consideration, therefore, counts powerfully in the Applicant’s favour.
9.4.2 Impact on Australian business interests
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence to indicate that this consideration is relevant to this review.
CONCLUSION
This application has presented a collection of compelling and competing features. There is much to be said for the Applicant whose matters have been referred to above, and particularly the Applicant’s ties to Australia with family, and the palpable problems should he be returned to Thailand which include cultural and social considerations and the real prospect of a return to a life associated with drugs and consequent very serious penalties imposed by Thailand laws.
The Tribunal has wrestled with the countervailing problems and the very serious considerations which the Tribunal views as the seriousness of the Applicant’s past offending and what the Tribunal has ultimately decided as the real likelihood to the return to the use of drugs, including the likelihood, therefore, of future commercial dealing in drugs to support his habit.
The seriousness of the Applicant’s past offending which is at its heart, the commercial supply of drugs, and the real risk of future offending, after much consideration, are considered by the Tribunal to outweigh the many strong positive factors in the Applicant’s favour.
The Tribunal concludes, therefore, that the decision under review is affirmed.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

........................................................................
Associate
Dated: 29 June 2022

Date of hearing: 14 June 2022

Solicitors for the Applicant:
Ms M Mamarot, SouthWest Migration and Legal Services

Solicitors for the Respondent: Mr E Taylor, Mills Oakley Lawyers

[2022] AATA 2055

29 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Date of hearing:	14 June 2022
Solicitors for the Applicant:	Ms M Mamarot, SouthWest Migration and Legal Services
Solicitors for the Respondent:	Mr E Taylor, Mills Oakley Lawyers