Lambaditis and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 4710
•8 November 2022
Lambaditis and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4710 (8 November 2022)
Division:GENERAL DIVISION
File Number:2022/6710
Re:Nicholas Lambaditis
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Member A Julian-Armitage
Date: 8 November 2022
Date of written reasons: 24 January 2023
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 16 August 2022 to not revoke the cancellation of the Applicant's visa and substitutes it with a decision to revoke the mandatory cancellation of the Applicant's visa.
................[SGD]....................
Member A Julian-ArmitageCatchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – whether the Applicant passes the character test – whether there is another reason why the decision to cancel the Applicant’s visa should be revoked – consideration of Ministerial Direction No. 90 – substantial criminal record – decision under review set aside and substituted with a decision revoking the original visa cancellation.
Legislation
Administration Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Minister for Home Affairs v Buadromo (2018) FCR 320
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member A Julian-Armitage
24 January 2023
INTRODUCTION AND BACKGROUND
Nicholas Lambaditis (“the Applicant”) is a 42 year old citizen of New Zealand (born in 1980). He first came to Australia on 23 August 1980, at approximately 7 months of age.[1] He returned to live permanently in Australia on 10 February 2006 when he was approximately 26 years old.[2]
[1] Exhibit 1(‘G Documents’), G41, Movement Records, pages 407-408.
[2] Ibid.
Offending
The Applicant has a limited history of offending throughout his migration history in Australia. The Check Results Report (“Criminal History”) contained in the material furnished to the Tribunal details the Applicant’s criminal history for the period from 09/06/2010 to 15/12/2021.[3] The criminal history states that the Applicant has committed five offences dealt with judicially on five separated sentencing occasions. This offending has had a varied ambit of sentences imposed including; fines, driving disqualifications and a term of imprisonment with a fixed non-parole period. The Applicant’s offending has included:[4]
·A driving offence- (consisting of exceeding speed limits, failure to comply with a no right/left turn, and a middle range drink driving- no traffic re-offending since 2010);
·Assault occasioning actual bodily harm x2; and
·Manslaughter.
[3] G documents ,G4, Attachment A: National Criminal History report (dated 28.03.2022), pages 20-53.
[4] Ibid.
At the outset, the evidence in relation to the Applicant’s Driving Record shows that he has not incurred any such offences since 2010. In the circumstances, I will not consider these offences and bearing any considerable weight to the considerations I am obliged to take into account save for mention where relevant below.
On 24 January 2022, the Applicant was given notice that his Class TY Subclass 444 Special Category (Temporary) visa (‘visa’) had been mandatorily cancelled pursuant to
section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[5] The visa was mandatorily cancelled on the basis that the Applicant did not pass the character test as he had a substantial criminal record and had been sentenced to a term of imprisonment of more than twelve (12) months which he was serving on a full-time basis in a custodial institution. On 27 January 2022, the Applicant made written representations to the Respondent seeking a revocation of the mandatory cancellation decision.[6] That decision was considered by a delegate of the Respondent who, on 16 August 2022, published the decision to deny the revocation sought.[7]
[5] G documents, G3, Email from Department to applicant – Notice of decision not to revoke visa cancellation made under s 501(3A) of the Migration Act 1958 (Cth), pages 8-14.
[6] Ibid.
[7] G documents, G3, pages 8-14.
On 16 August 2022, the Applicant made an application to this Tribunal for review of the delegate’s decision refusing to exercise the discretion to enliven the powers in s 501CA(4) of the Act to revoke the mandatory cancellation of the Applicant’s visa.[8]
[8] G documents, G2, Application for review of a decision, pages 3-7.
The hearing of this application proceeded before me on 10 & 11 October 2022. The following persons gave oral evidence:
·The Applicant;
·Mr Dimitrios (Jimmy) Bertos;
·Ms Anastasia Reynolds;
·Mr George Reynolds,
·Ms Joanna Groves;
·Mr Sean Roll; and
·Ms Daphne Lambaditis.
The hearing also received written evidence which was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act to the delegate of the Respondent on 27 January 2022. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo in relation to the manner in which the balance of factors when determining whether there are grounds for the revocation of a cancellation of visa:[9]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[10]
[9] (2018) FCR 320.
[10] Ibid, at [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, at [31] (Collier J, with whom Logan and Murphy JJ agreed).
Issues
There are, therefore, two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c) of the Act, which provides that a person will have a substantial criminal record if:
“…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
;
…”
Consequently, failure of the character test arises as a matter of law.[11]
[11] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at [63].
On 12 June 2015, the Applicant was sentenced to a term of imprisonment of 9 years with a non-parole period of 6 years and 9 months deemed to have commenced on 3 November 2013 and expiring on 2 August 2020 with a parole period of 2 years and 3 months commencing on 3 August 2020 and expiring on 2 November 2022.[12] This sentence was in relation to 1 count of manslaughter and 1 count of assault occasioning actual bodily harm. The Applicant’s criminal history also includes a further charge of assault occasioning bodily harm committed on 4 September 2021 to which he entered an early plea of guilty and was sentenced to 18 months of imprisonment with a parole release date of 28 January 2022. [13]
[12] G documents, G32, page 169 R v Lambaditis Supreme Court of NSW sentencing transcript.
[13] G documents, G5, page 55.
Therefore, both terms of imprisonment are separately sufficient in the present case to satisfy me, and I find, that the Applicant does not pass the character test as he was sentenced to imprisonment for a period of 12 months or more (s 501(6)(a) and s 501(7)(c) of the Act) on both occasions in relation to his offending.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”) has application.[14] The Direction provides guidance for decision-makers on how to exercise the discretion and relevantly states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[15]
[14] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
[15] Direction No 90, at para [6]. See also para [4(1)] which provides that a “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” pursuant to ss. 501 or 501CA of the Act (as the case may be). Summarised where appropriate, 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.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)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.
(5)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.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction, respectively, stipulate four “Primary Considerations”, and four “Other Considerations” by which I must be guided in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[16]
[16] Ibid, para [8].
The Other Considerations which, where relevant, I must take into account, 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;
ii) impact on Australian business interests.”[17]
[17] Ibid, para [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)one or more Primary Considerations may outweigh other Primary Considerations.
I will now turn to addressing the Primary and Other Considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction requires decision-makers to 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction.
As referred to above, whilst the Applicant’s criminal history is not lengthy, it is, without question, very serious in nature as reflected by the sentencing for the offences, and in particular, the manslaughter of a person in an unprovoked altercation.
I will now apply the relevant sub-paragraphs of Paragraph 8.1.1(1) of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.
Paragraph 8.1.1(1)(a)(i)
This sub-paragraph looks for the commission of violent and/or sexual crimes. If an Applicant has committed such offences, this sub-paragraph deems that they are to be viewed “very seriously” by the Australian Government and the Australian community.
On 12 June 2015, the Applicant was sentenced to a term of imprisonment of 9 years in relation to a charge of manslaughter and a further charge of assault occasioning actual bodily harm. It is without question that this type of offending is specifically the sort that this sub-paragraph of the Direction contemplates as “very serious” and I deem it as such.
Paragraph 8.1.1(1)(a)(ii)
This subparagraph looks for the commission of crimes of a violent nature against women or children, regardless of the sentence imposed.
There is nothing to suggest that the Applicant has been involved in any crime against women or children.
Paragraph 8.1.1(1)(a)(iii)
This sub-paragraph refers to acts of family violence contained in an Applicant’s criminal history. If such offending is contained in the Applicant’s history, it is viewed “very seriously” by the Australian Government and the Australian Community.
Similarly, nothing in the Applicant’s history indicates that there has ever been an incident involving family violence.
Paragraph 8.1.1(1)(b)
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
There is no evidence before me to evidence that the types of offending contemplated by this sub-paragraph are relevant to the Applicant in this case.
Paragraph 8.1.1(1)(c)
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The sentence imposed by the Supreme Court of NSW was discounted by 25% due to the Applicant’s early guilty plea.[18] The range of sentencing was affirmed by the Court of Criminal Appeal NSW in relation to sentencing with the finding that there was no reason to upset the term imposed at first instance.[19] It is my view that the sentence in the present case was due to the seriousness of the offence as opposed any issue of offending history on the part of the Applicant.
[18] G documents, G32, [118].
[19] G documents, G33, [40]-[41].
Paragraph 8.1.1(1)(d)
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
While it is disappointing that the Applicant re-offended in 2021 which gave rise to another term of imprisonment, the evidence before this Tribunal was that this incident occurred during a period when the Applicant was unable to return to his family in Sydney due to Covid. He has been working in Brisbane on the Cross River Rail tunnel and all was going well for his until Covid hit and states he felt isolated from his familial support system.
In the circumstances and given that infrequency of offending, I give little weight to this sub-paragraph.
Paragraph 8.1.1(1)(e)
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
For the reasons espoused in the above sub-paragraph, I give little weight to this sub-paragraph.
Paragraph 8.1.1(1)(f)
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction concerns itself with whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence that the Applicant has provided any such information.
Paragraph 8.1.1(1)(g)
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
I note that there was a warning issued to the Applicant on 12 October 2020 that his visa may be cancelled if the applicant were to engage in further criminal or other serious offending pursuant to this sub-paragraph.[20]
[20] G documents, G34, page 208.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant sub-paragraphs contained in paragraph 8.1.1(1) of the Direction. Taking into account the particular applicability to the relevant sub-paragraphs, I am of the view that the totality of the Applicant’s unlawful conduct can be readily characterised as “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, we should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, we must have regard to the three following factors on a cumulative basis:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the non-citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. I am satisfied that if the Applicant were to re-offend in the categories for which he has been convicted and sentenced, individual victims and/or the Australian community could suffer physical, or other forms of damage.
I am satisfied that if the Applicant were to re-offend in the vein of the offences contained in his criminal history, individuals and/or the Australian community could conceivably suffer physical harm and that that harm could reach catastrophic levels.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (Sub-paragraph 8.1.2(2)(b) of the Direction)
(i) Information and evidence on the risk of the Applicant reoffending
The evidence before me clearly shows that each offending episode, including most of his traffic offences, have been fuelled by alcohol. He claims to have started drinking at age 16 and had a problem with alcohol ever since.[21]
[21] G documents, G35, 332 [13].
The Applicant has undertaken a number of courses in relation to this addiction in order to ensure his past offending does not govern his future.[22] The courses undertaken dealt with the issues of :
·Stress Management for which he completed a workbook;
·Anger Management also completed a workbook;
·Alcohol and Drugs.
[22] Exhibit 6.
The Applicant’s evidence is that he has a sponsor and intends to maintain his links with Alcoholics Anonymous.[23]
[23] Transcript, Day 1, p. 9 lines 2-6.
Whilst there are no current clinical reports in relation to recidivism, I am persuaded by this Applicant that he is taking his life very seriously and harbours a great deal of remorse for his past action and the consequences his offending has caused not only to him and his family, but also to his victims and their families. The Applicant has plans for his future and claims that alcohol and violent offending are not within those plans. He told this Tribunal that he currently attends Alcoholics Anonymous meeting 5 days a week and is linked to a 24-hour program with that organisation in the event that he requires further support.[24]
[24] Transcript, Day 1, p.25 lines 26-47.
I find that the Applicant is sincere in wanting to turn his life around and is sufficiently motivated to do this with the assistance of the tools he has availed himself of in order to achieve his goals. As mentioned above, an updated clinical report in relation to re-offend has not been provide. However, the previous report by Dr Sussette Sowden dated 12/12/2019 diagnosed the Applicant as suffering from “Alcohol Use Disorder” with “the effect of the disorder being such that, at the time of offending,…lost all his inhibitions and engaged in violent and aggressive behaviours that he ordinarily would never engage in. That is, the behaviour was considered out of character for [the Applicant]”.[25]
[25] G documents, G30.
I am of the view that Dr Sowden’s diagnosis accurately describes the condition the Applicant suffers from and that he recognises the dire need to ensure he receives treatment for this condition so that he can be confident that he will re-join the community without any risk of re-offending.
Evidence of rehabilitation achieved by the Applicant by the time of this decision
As previously mentioned, the Applicant has provided evidence of his rehabilitation which includes obtaining a sponsor and engaging in Alcoholic Anonymous. He has also testified to have undertaken several courses which have provided a great deal of insight into what has triggered his past offending and particularly, his violent offending.
(iii) Conclusions about risk
The Applicant has provided this Tribunal with very persuasive arguments in relation to risk going forward. He has shown insight into the reasons for his offending and has engaged in treatment of his “Alcohol Disorder”. His positive steps towards becoming a law abiding member of the community have persuaded me that he is a low to moderate risk to the community when and if he maintains the path he has set out for himself.
Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?
Paragraph 8.1.2(2)(c) provides:
“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.”
As this matter does not involve the refusal of a visa but an application for the revocation of a mandatory cancellation of the Applicant’s visa, this sub-paragraph is not relevant in the determination of this application.
Conclusion: Primary Consideration 1
With respect to the weight attributable to Primary Consideration 1:
(a)I find that the nature and seriousness of the Applicant’s criminal conduct has been “very serious”;
(b)I find that should the Applicant re-offend, the nature of the harm to individuals or the Australian community would be very serious and would likely involve physical harm that would conceivably be at a catastrophic level;
(c)I have assessed the Applicant’s risk of recidivism as low to moderate taking into account his clinical diagnosis by Dr Sowden and the evidence of the Applicant himself in relation to his current and future treatment plans and insight.
In examination of the material before me, I am led to the conclusion that this Primary Consideration 1 carries a certain, but not determinative, level of weight against the revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)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 in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
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; 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 being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the 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 of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; 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, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
There is nothing before me to suggest that any of the Applicant’s offences involved an offence of the kind contemplated by this Consideration.
Conclusion: Primary Consideration 2
I give no weight to Primary Consideration 2 as there is no evidence of relevance to it in the present case.
Primary Consideration 3: The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination as to whether non-revocation under section 501CA is, or is not, in the best interests of a child who would be affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively, contain further stipulations and provisions. The former provides that for their interests to be considered, the relevant child (or children) must be under eighteen years of age at the time when a decision, about whether to refuse or cancel the visa or not to revoke the mandatory cancellation decision, is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of minor children. Those factors relevantly comprise for present purposes:
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 non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Identification of the relevant minor children
Prior to an application of the factors speaking to the allocation of weight to this Primary Consideration 3, it is necessary to identify the minor children relevant to this element of the consideration.
The Applicant does not have any minor children of his own. As he is a member of a large extended Greek family, the Applicant has some 7-8 nieces and nephews living in Australia. It was the Applicant’s evidence that he has not had a lot to do with these children as he has been incarcerated when they were born and growing up. He accepts that he does not play a parental role with any of these children and that, at most, he has seen some of them 3-4 times.
The parties contentions
The evidence was that whilst the Applicant has a number of nieces and nephews, he has not had the opportunity to develop a bond or relationship with any of them due to his personal circumstances. On the evidence from all witnesses with respect to the closeness enjoyed by the Applicant’s family, it is likely that the Applicant would bond with these members of his family if he were to remain in Australia.
Conclusion: Primary Consideration 3
In the circumstances I give no weight to Primary Consideration 3 as the Applicant does not, at this stage, enjoy a relationship with any of his nieces and nephews.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
- [27]
Is clear that the expectations of the Australian community apply regardless of whether a non-citizen poses a measurable risk of causing harm. The Australian community expects non-citizens to obey Australian laws while in Australia. [26] The Direction provides:-
“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 governments views as articulated , without independently assessing the community’s expectations in the particular case.[27][26] Paragraph 8.4(3) Direction 90
With respect to the requirements of paragraph 8.4(1) of the Direction, the expectations can be expressed as:
·
the Australian community expects that non-citizens will obey the Australian laws while in Australia; and
·where a non-citizen has either breached the above expectation or there is an unacceptable risk that the non-citizen will breach the above expectation; then;
·the Australian Community expects the Australian government to not allow the non-citizen to enter or remain in Australia.
It follows that, given the nature of the Applicant’s offending, the Australian community’s expectation, in the ordinary course, would expect the Australian government to not allow the Applicant to remain in Australia.
Furthermore, paragraph 8.4(2) directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(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 Applicant’s offending does not involve any of the above genre of criminality. There was no evidence that the manslaughter victim was particularly vulnerable although it is reasonable to assume that a person outside of clubs and hotels in the early hours of the morning may well be vulnerable due to some level of intoxication. However, I do not think it appropriate to arrive at that conclusion. Given this, there is nothing in evidence to base any findings in relation to the types of offences listed above.
Finally, the issue remaining to be determined is whether there are any factors which modify or affect the Australian community’s expectations. This determination is assisted by paragraphs 5.2(4) and (5) of the Direction which provides:
(1)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(2)the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have participated in or contributing to the Australian community for only a short period of time;
(3)Australia may afford a higher level of tolerance of criminal or serious conduct by non-citizens who have lived in Australia most of their lives; and
(4)the nature of the non-citizen’s conduct or harm that would be caused if the conduct were to be repeated may be so serious that even strong counter balancing considerations may be insufficient to justify a positive visa outcome to the non-citizen.
“Limited stay” visas are not defined in the Act, however, for present purposes it is not sensible for the reference in 1 above to encapsulated permanent residence visas as the holders of those visas have a right to remain without time limitations. Therefore, and as the Applicant was the holder of a visa that allowed him to remain in Australia indefinitely this principle does not apply to him.
In relation to 2 above, the Applicant has worked in Australia all of his adult life, save for the time he was incarcerated. The evidence shows that he worked, and presumably paid income tax, saving sufficient funds in order to be able to obtain a loan from a lending institution in order to purchase a unit which he still owns. He has fathered 2 children and it cannot be said that his contribution to the Australian community has been in any means “short” . Therefore, the Australian community’s tolerance is not lowered in the Applicant’s case.
With respect to 3, the Applicant first came to Australia when he was merely 7 months old in 1980. He has spent almost his entire life in Australia and has stated that, in his mind, he is Australian. The evidence is that all of the Applicant’s large family are Australian citizens and live in Australia with no family left in New Zealand. The Applicant’s family in Australia consist of:
·Mrs Anastasia Reynolds, - Mother
·Mr George Reynolds - Stepfather
·Mr Harley Reynolds-Stepbrother
·Ms Hollie Reynolds -Stepsister
·Ms Shontel Hudson nee Reynolds -Stepsister
·Mr Evangelos Lambaditis-Father
·Mrs Daphne Lambaditis-Stepmother
·Mr George Lambaditis-Stepbrother
·Mr Anthony Lambaditis-Stepbrother
·Mr Tukaha Kyriacou-Son
·
Mr Jonathan Kyriacou-Son
In addition to the above with whom the Applicant stated he is very close to, he has numerous cousins, nieces and nephews. The following relatives gave oral evidence:
Anastasia Reynolds
Mrs Reynolds is the Applicant’s mother. In relation to the Applicant’s links to Australia, the Tribunal heard evidence from the Applicant’s mother who stated that she “used to shout at him and strike him…” she went on to say that when she got sober she spent considerable time fighting her own battles with addiction and that is why she was unable to give the Applicant the foundations he needed at the time as he was growing up. She told the Tribunal that she knew the Applicant didn’t want to take the job in Brisbane but that she pushed him as she thought he would be ok and that she saw it as a new beginning. This is despite her evidence that when the Applicant came out of prison, she “saw things weren’t right”. Mrs Reynolds went on to state that the Applicant’s second time in prison changed him. She testified that she is aware of the changes in the Applicant and that he is not alone and no longer depressed as he has a plan and the answer (presumably on how to move forward and deal with this issues).
George Reynolds
Mr Reynolds is the Applicant’s stepfather who told the Tribunal he is familiar with the Applicant’s offending. His evidence was in essence about the hard upbringing the Applicant had endured and how his mother had had other men who were not fathers to him, Mr Reynolds acknowledged that the Applicant had some issues as early as when he was 15 years old. He described him as an introvert but extrovert and that he always did the right thing. Never showing any signs of violence or aggression but could be easily offended. In relation to whether he and the Applicant’s mother could travel to New Zealand to visit the Applicant should he be required to leave, Mr Reynolds said his wife is too scared to travel and that they have no money to be able to contemplate such travel. The Applicant’s stepfather stated that he was aware of the steps taken to treat the issues that gave rise to the offending and believes he is out to better himself.
Joanna Groves
Ms Groves is the Applicant’s first cousin. The Applicant and Ms Groves shared accommodation in Sydney throughout their childhood especially during school holidays. She described her relationship with the Applicant as almost like siblings. She stated that she lives in Brisbane with her husband and 2 children and that they are happy for the Applicant to live with them if he is able to stay in Australia. Ms Groves gave evidence that she is well aware of the Applicant’s attendance and treatment with Alcoholics Anonymous and that he is looking at undertaking course and focusing on his religion in order to ensure that he does not re-offend. Ms Groves told me that she will assist the Applicant in any way possible to ensure he does not re-offend.
Sean Rolls
Mr Rolls is a close friend of the Applicant’s and has been so since the pair were 11 years old. Mr Rolls said the Applicant was like a brother to him and that he has been in constant contact with the Applicant who has talked to him about Alcoholics Anonymous meetings. He told the Tribunal that in all the time he has known the Applicant he has never seen any signs of violence or aggression.
Daphne Lambaditis
Mrs Lambaditis is the Applicant’s stepmother. She stated that she first met the Applicant when he was 3 years of age and that he is like her own son. She states she is aware that the Applicant is “fixing his issues so that none of that can occur again”. According to this witness there are 68 members of their family who are all Australian citizens except for only 5 non-citizens. This witness stated that they simply forgot to remind the Applicant to apply for his citizenship and he forgot to do it. In describing the strong connection, the Applicant has with his family, his stepmother said that he would spend every weekend at his father’s house when he was growing up as the Applicant’s mother was in a domestically violent relationship. She said he was very protective of his mother and would not tell them much so as not to worry them. She stated that this time spent in their household fostered a strong bond between him and his step siblings to the point that one of her sons waited to get married till after the Applicant had been released from prison so that he could be at the wedding. In addition, the stepmother told the Tribunal that she and the Applicant’s father visited the Applicant in gaol on a weekly basis having to leave home at 3 am so they could be there by 10. Mrs Lambaditis confirmed everything the Applicant’s mother had said with respect to his time in Brisbane and how they all had each other in Sydney but the Applicant was alone without familial support and not having addressed his alcohol issues. She related how utterly devastated the entire family would be should the Applicant be required to leave Australia and that he has a home with them as long as he needs it so that he can deal with his rehabilitation.
In addition to the above oral evidence, the Tribunal received statements from the Applicant himself, the Applicant’s father, Mr Evangelos Lambaditis, who states what a dire impact the Applicant’s inability to remain in Australia would have on him and his entire family. He states that he suffers from a heart condition which has precluded him from travel in the past and that he is fearful of not being able to see his son again.[28] The Applicant’s sons also provided a statement saying how much they are looking forward to meeting their biological father and forming a relationship with him and their extended family.[29] The Tribunal also received statements from Dimitrios (Jimmy) Bertos, the Applicant’s cousin who attests to the positive changes he has witnessed from the Applicant particularly in relation to Christianity and dealing with the “root” causes for his previous offending and the on-going support he is receiving in that respect.
[28]Day 1 Transcript p.56 lines 40-44.
[29] G documents, G23-G24.
I repeat that the Applicant has resided off and on in Australia since he was seven months old. He is now a week or so off turning 43 years of age having spent almost his entire life here in Australia. He has worked since he was 16 years old and, on all accounts, never been in receipt of Centrelink payments or the like. This clearly means that the Australian community has a higher than usual tolerance of criminal or other serious conduct by the Applicant.
Whilst the Applicant’s offending, in particular, the manslaughter offence was serious in the extreme, I find that as a countervailing consideration coupled with the total lack of intent to have caused harm to one victim and the death of another balance against his obvious remorse, insight and responsibility applied to his rehabilitation is such that work in his favour.
Thus, I am of the view that the Australian community’s expectations are modified to the extent that the community’s tolerance of Applicant’s criminal conduct is higher than the usual.
Conclusion: Primary Consideration 4
Primary Consideration 4 carries a level of weight in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs in turn.
Other Consideration (a): International non-refoulement obligations
From the evidence before me in both written and oral form, the Applicant’s possible removal to New Zealand would not breach Australia’s international non-refoulment obligations. Therefore, this consideration is not relevant in this case.
Other Consideration (b): Extent of Impediments if Removed
Paragraph 9.2 of Direction requires a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
As mentioned above, the Applicant moved to Australia when he was a baby aged 7 months. On all the evidence before me, he has no network of family or friends in New Zealand as his large family network is here in Australia. He would likely be able to obtain work if removed but would most likely suffer in his attempts to rehabilitate in New Zealand. This is by no means due to a lack of resources in that country, but due to the large support system that the Applicant as relied upon here to assist and support him throughout his various rehabilitation avenues. A similar situation caused a relapse in his use of alcohol when the Applicant was on his own without his family working in Brisbane. I am, therefore, of the view that the Applicant will face some impediments that he would have to overcome in terms of support on his rehabilitation journey.
In respect to the Applicant’s age and state of health and whether these would present any impediments to relocating to New Zealand, I am of the view that he would find work without issue and enjoy the same or similar systems, health and otherwise and institutions of social welfare and support as are available in Australia. The only major impediment, in my view, which weights in his favour, is the obvious support he has from his entire family in Australia who have, in the main, committed to his rehabilitation and support.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a s 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, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before me about the impact that the Applicant’s continued presence in Australia is likely to have. Therefore, I am unable to speculate as to the impact, if any, his presence in Australia would have on the victims of the Applicant’s offending.
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I consider each in turn.
The strength, nature, and duration of ties to Australia
With reference to the first part of this Other Consideration, I will consider three elements. Firstly, I will assess the impact of a refusal decision on the Applicant’s, “immediate family members”, where those people have a right to remain in Australia indefinitely. Secondly, I will assess the impact of a refusal decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Thirdly, I will assess the strength, nature and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I address each component in turn.
Impact of non-revocation on the Applicant’s immediate family
This initial exercise requires me to identify the Applicant’s immediate family in Australia. As has been mentioned above, the Applicant has his mother and stepfather in Australia as well as his father and stepmother. In addition, he as stepbrothers and stepsisters on both sides of his biological parents. Furthermore, he has twin adult sons that albeit he has not yet met both furnishing statements as to their desire to meet and forge a relationship with the Applicant.
Furthermore, to these close family members, the evidence as I understood it was that there is a total of 68 odd persons who form this close- knit family of Greek origin.
The evidence from both sides of the Applicant’s family was that the removal of the Applicant from Australia would have devastating effects on all of his immediate and extended family. The Applicant’s mother’s evidence was that she greatly feared not being able to see her son again as she suffers from a diagnosed fear of flying as well as not enjoying a financial position where she and her husband would be able to funds regular trips to visit the Applicant. Similarly, the Applicant’s father and stepmother mirror this situation as his father has a heart condition that has prevented them from travel in the past.
I do not harbour any doubts in relation to the close ties this Applicant has with his entire family nor did the Respondent cast any doubt in this respect. Having regard to the level and state of evidence in relation to the Applicant’s parents and stepsiblings, I am of the view, and thus find, that the strength, nature and duration of his ties to his immediate family members carries a great deal of weight in favour of revocation of the Applicant’s mandatory cancellation of his visa. I make this finding on the basis of evidence that each of the Applicant’s parents, step-parents and step-siblings are Australian citizens with the right to remain indefinitely in Australia.
Strength, nature, and duration of ‘other ties” – length of residence
There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a child. As mentioned above, the Applicant came to Australia with his parents when he was 7 months old. Whilst the Respondent has stated, his last Special Category (subclass 444) visa was issued on 10 February 2006, the evidence before me has not displaced the fact that the Applicant has resided in Australia since late 1980 his entire life of almost 43 years in this country.
I will now refer to the two tempering sub-elements in paragraph 9.2(a) of Direction The first of those does not detract from the overall weight I have given in respect to this consideration as, whilst the Applicant has some traffic history, mainly for exceeding speed limits, disobey signs and 1 count of driving with middle range of alcohol for which the Applicant was disqualified from driving for 6 months (in 2010) . The other traffic offences invoke penalties of fines in varying amount. It is noteworthy that no further traffic offences have been committed since 2010. Therefore, and for that reason, I have not upset the weight in favour of the Applicant.
The second of the two tempering sub-elements compels an assessment of the extent of the Applicant’s positive contributions to the Australian community. The evidence before me is that the Applicant has consistently worked since he was 16 years old except for the time that he was incarcerated. He even travelled to Brisbane away from his family in order to work on the Cross River tunnel after completing his first sentence. Consequently, I apply this sub-element in favour of the Applicant due to his positive contributions to the Australian community by way of his engagement in remunerative employment. Therefore, I apply more weight to this Other Consideration in relation to both the first and second tempering sub-elements.
Strength, nature, and duration of “other ties” – family and other social links
It is without questions, and the Respondent admits, that the Applicant has a large and close- knit family in Australia who would suffer a great deal of emotional hardship were he to be removed to New Zealand. These links include his twin adult sons who have provided statements of their desire to forge a relationship with him in future.
I am of the view that I can safely find that were the Applicant to be removed to New Zealand the remainder of the Applicant’s extended family as well as his adult sons would be impacted. Therefore, I find that this component of Other Consideration warrants the allocation of weight in favour of the Applicant’s revocation of the mandatory cancellation of his visa.
Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. In the present circumstance, I find that this component is not relevant.
Weight allocable to Other Consideration (d): links to the Australian community
In relation to the first part of this Other Consideration, namely the strength, nature and duration of the Applicant’s ties to Australia, and having analysed its three elements, I find that the evidence overwhelmingly points to a heavy allocation of weight in favour of the Applicant. The second element is not relevant here as I do not find any impact on an Australian business. However, the Applicant’s link to the Australian community carries a heavy level of weight in favour of a finding that his visa status be restored.
Finding: Other Considerations
I now summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: not relevant here;
(b)extent of impediments if removed: carries some weight in favour of revocation;
(c)impact on victims: not relevant here;
(d)links to the Australian community: carries a compellingly heavy weight in favour of revocation.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Pursuant to s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is “another reason”, pursuant to the Direction , to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by
s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction and find as follows:-
· Primary Consideration 1: carries a level of weight, but not determinative, against revocation;
· Primary Consideration 2 carries no weight either way;
· Primary Consideration 3: carries no weight either way; and
· Primary Consideration 4: carries a level of weight in favour of revocation .
I have outlined the weight attributable to the Other Considerations above in [112]. I find the elements of Other Considerations, where relevant, combined with my findings for Primary Consideration 4 in a combined sense, are sufficient to out-weigh the weight allocated to Primary Consideration 1.
Therefore, my overall view of the evidence, as is relevant to the Primary and Other Considerations in Direction 90, favours the revocation of the delegate’s decision on 16 August 2022, to the extent that the Applicant’s visa status allowing him to remain in Australia should be restored.
Consequently, I find that there is “another reason” as to why the mandatory cancellation decision on 24 January 2022 should be revoked pursuant to my above findings as per s501CA(4)(b)(ii) of the Act.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and makes a decision in substitution to revoke the original visa cancellation.
I certify that the preceding 119 (one-hundred-and-nineteen paragraphs are a true copy of the reasons for the decision herein of Member A Julian-Armitage
..........................[SGD]..............................................
Associate
Dated: 24 January 2023
Dates of hearing:
Date of final submissions:
10 & 11 October 2022
21 October 2022
Solicitor for the Respondent
Jake Kyranis (Sparke Helmore Lawyers)
Annexure A – Exhibit Register
EXHIBIT PARTY DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED 1 R G-Documents
(G1-G42, pages 1-431)
Various 29 August 2022 2 R Respondent Statement of Facts, Issues, and Contentions
(pages 1-14, paragraphs 1-56)
26 September 2022 26 September 2022 3 R Respondent Tender Bundle
(R1-R5, pages 1-22)
Various 26 September 2022 4 A Applicant Witness Statements
(7 pages)
Various Various 5 A Applicant Statement of Facts, Issues, and Contentions
(2 pages)
Undated 4 October 2022 6 A Program Workbooks (Anger Management, Drug and Alcohol, Stress Management)
(152 pages)
Various 4 October 2022
Paragraph 8.4(4) and Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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Remedies
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Jurisdiction
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