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

Law and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1469 (25 May 2020)
Division:GENERAL DIVISION
File Number: 2020/1263
Re:Kwok Lam Law
APPLICANT

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

DECISION
Tribunal:Mr S Evans, Member
Date:25 May 2020
Place:Sydney

The reviewable decision made on 2 March 2020, being the decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation decision, is set aside and the matter is remitted to the Minister with a direction that the original decision of 18 March 2019 not be set aside.

.....[sgd]...................................................................
Mr S Evans, Member
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of a visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record under s 501(7) – whether the applicant made representations in accordance with the invitation – whether representations were made when posted or received – whether there is another reason to revoke the mandatory cancellation of the visa – Ministerial Direction No. 79 – primary considerations – other considerations – decision set aside and remitted for reconsideration with directions.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

CASES
Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) [1978] AATA 49
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Comcare v Heffernan [2011] FCAFC 131
FYBR v Minister for Home Affairs [2019] FCA 500
Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58
Re Upton and Department of Transport (1977) 1 ADL 150
Sillars and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 994
SECONDARY MATERIALS
Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (instrument made on 20 December 2018, commenced 28 February 2019)

REASONS FOR DECISION
Mr S Evans, Member
25 May 2020

This is an application for review of a decision not to revoke the mandatory cancellation of the Applicant’s visa. The Applicant submits that whilst he has a “substantial criminal record”, the cancellation should be revoked for another reason. The Minister submits that the application should be dismissed because the Tribunal has no power to revoke the mandatory cancellation as the representations were not made in accordance with the invitation under subsection 501CA(3) of the Migration Act 1958 (Cth) (“the Act”).
INTRODUCTION
The hearing into this matter took place on 14 and 15 May 2020. Kwok Law (“the Applicant”) had legal representation. All parties appeared via video link or telephone in accordance with the COVID-19 Special Measures Practice Direction given under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth).
On behalf of the Minister (“the Respondent”) it was submitted that Mr Law’s application should be dismissed as he did not make representations in accordance with the invitation under subsection 501CA(3) of the Act and the Tribunal has no power to revoke the mandatory cancellation.
Submissions were heard from both the Applicant and Respondent in relation to this issue and it was determined that the matter be heard in full.
For the reasons which follow, the decision under review will be set aside.
BACKGROUND
Mr Law is a 52 year old citizen of Hong Kong who has resided in Australia since 21 October 2009. He met his Australian citizen wife in December 1995, and they married in 1999. Until his imprisonment and subsequent detention, Mr Law lived in Sydney with his wife and their four children, who are aged 23, 21, 16 and 8.
On 26 June 2013, Mr Law was granted a Partner (Residence) (Class BS) (subclass 801) visa (“the visa”). On 18 March 2019, Mr Law was sent a notice of visa cancellation under section 501(3A) of the Act.
The notification stated that Mr Law’s visa was cancelled as, pursuant to subsection 501(6)(a) of the Act, he “failed to pass the character test” because he had a “substantial criminal record” in accordance with subsection 501(7)(c) of the Act.
Under subsection 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 9 January 2019, Mr Law was convicted of ‘Police pursuit – not stop – drive dangerously- 1^st off -T2’ and sentenced to 15 months imprisonment.
THE RELEVANT LAW
Section 501(3A) of the Act provides that the Minister must cancel a visa if the Minister is satisfied that a person does not pass the character test due to them having a substantial criminal record in accordance with subsections 501(7)(a),(b) or (c); and they are serving a full-time sentence of imprisonment.
Pursuant to subsection 501CA(3) of the Act, the Minister must as soon as practicable after making the original decision:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Revocation of the mandatory cancellation of visas is governed by subsection 501CA(4) of the Act. Relevantly this provides that:
(4)     The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
The Migration Regulations 1994 (Cth) (“Migration Regulations”) relevantly state:
2.52 Refusal or cancellation of visa—representations in respect of revocation of decision by Minister (Act, s 501C and 501CA)
(2) The representations must be made:
(a)for a representation under paragraph 501C(3)(b) of the Act—within 7 days after the person is given the notice under subparagraph 501C(3)(a)(i) of the Act; and
(b)for a representation under paragraph 501CA(3)(b) of the Act—within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act.
Ministerial Direction No. 79
When considering whether or not to revoke a mandatory cancellation decision under subsection 501CA(4) of the Act, paragraph 7(1) of Ministerial Direction No. 79 (“the Direction”) sets out how the discretion is to be exercised. It states:
(1) Informed by the principles in paragraph 6.3…, a decision-maker:
...
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Part C of the Direction sets out the primary and other considerations that must be taken into account, where relevant, when deciding whether to revoke a mandatory cancellation. The primary considerations should generally be given greater weight than the other considerations. The primary considerations as set out in paragraph 13(2) of the Direction are as follows:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
The other considerations which must be taken into account, where relevant, are outlined at paragraph 14(1) of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
ISSUES TO BE DETERMINED
The issues before the Tribunal are:
(a)whether Mr Law made the representations required by section 501CA(4)(a); and if so
(b)whether he passes the character test; or
(c)whether there is another reason why the decision to cancel Mr Law’s visa should be revoked.
Revocation of the cancellation decision requires as a pre-requisite that representations are made in accordance with the invitation. As this issue is in contention, and the Respondent sought to have Mr Law’s application dismissed on the grounds that he did not make the representations required, it is appropriate to first determine if the requirements in subsection 501CA(4)(a) of the Act are met.
DID MR LAW MAKE REPRESENTATIONS AS REQUIRED BY THE ACT?
Evidence relating to the revocation request
On 18 March 2019, Mr Law was sent a notice of visa cancellation under section 501(3A) of the Act.
It was written in the correspondence that Mr Law had an opportunity to seek revocation of the original decision to cancel his visa.
While your visa has been cancelled and you no longer hold a visa, you have an opportunity to make representations to the Minister about revoking the decision to cancel your visa under s501(3A) (‘the original decision’).
You are hereby invited to make representations to the Minister about revoking the original decision. The representations must be made in accordance with the instructions outlined below, under the headings ‘How to make representations about revocation of the original decision’ and ‘Timeframe to make representations about revocation’.
…
In addition to details on how to make representations about revocation of the original decision, the letter contained a section entitled ‘Timeframe to make representations about revocation’, in which it was written:
Under Regulation 2.52(2), any representations you may wish to make in relation to the revocation of the original decision must be made within 28 days after you are given this notice. That means, in order for your representations to be considered, the Required Information… MUST be received by the Department within 28 days after you are taken to have received this notice.
As this notice was sent by mail from a place in Australia to an address in Australia, you are taken to have received it seven (7) working days after the date of this notice. A working day does not include weekends or public holidays in the Australian state or territory to where this notice was posted.
Providing the Required Information
If you decide to make representations to the Minister to seek revocation of the original decision, it is essential that the Required Information is received by the Department within 28 days after you are taken to have received this notice as this timeframe cannot be extended.
…
If the Required Information is received outside the prescribed timeframe of 28 days, the Minister or his/her delegate is not able to consider your representations because they would not have been made in accordance with the invitation (as set out in this notice), as required by s501CA(4)(a) of the Act.
[emphasis in original]
At the time of receiving the notice, Mr Law was in prison and it was to St Heliers Correctional Centre that the notice of cancellation was sent. This was received by Mr Law, and he signed an acknowledgement receipt dated 19 March 2019.
On 23 July 2019, an email was sent to Mr Law acknowledging the receipt of representations about revocation of the decision to cancel his visa under section 501(3A) of the Act. This email stated in part:
On 18 March 2019, you were notified of a decision to cancel your Class BS Subclass 801 Partner visa made under s501(3A) of the Migration Act. You were invited in that notice to make representations about the possible revocation of the decision to cancel your visa.
This letter is to confirm that we have received your representations and will consider them in due course. You will be notified when a decision has been made about whether or not to revoke the decision to cancel your visa.
On 12 November 2019, a further letter was sent to Mr Law by the Respondent which contained further information relevant to the decision on whether to revoke the original decision to cancel his visa. The letter stated that in a notice dated 18 March 2019 Mr Law was informed that his visa was cancelled and that he was invited to make representations around revocation of the original decision; and on 14 July 2019 his ‘response to the invitation was received by the Department’.
On 2 March 2020, Mr Law was sent notification of the decision by a delegate of the Minister not to revoke the cancellation of his visa. The letter began noting that Mr Law’s Class BS Subclass 801 Partner visa was cancelled on 18 March 2019, and that Mr Law ‘made representations within the period and in the manner specified’. Attached to the notification was a statement of reasons which at [3] is written:
On 14 July 2019 Mr LAW made representations seeking revocation of the mandatory visa cancellation decision. These representations were made within the period and in a manner set out in the regulations. Thus, I find that Mr LAW has made representations in accordance with the invitation, as required under s501CA(4)(a) of the Act.
A series of emails between Mr Law’s son, Kelvin Law, and the National Character Consideration Centre (“NCCC”) was provided to the Tribunal shortly before the hearing.
In an email sent on 14 July 2019 at 7:11 PM from Kelvin Law to the NCCC, Mr Law writes:
I have received noticed that representations sent previously by post was not received by the department. As per our phone call, I am re-sending these forms via email.
Attached is the revocation form and supporting documents…
On 15 July 2019 at 4:31 PM, Kelvin Law was sent an email from an officer at the NCCC requesting responses to the following questions:
1Can you please advise us the exact date when you posted your representation/revocation request to the Department of Home Affairs?
2In addition, can you please provide us with an evidence which shows that you previously posted your representation/revocation request to the Department of Home Affairs?
Kelvin Law responds on 16 July 2019 at 2:02 PM and states that ‘Representations were sent in the morning of the 25th March 2019’ and ‘Unfortunately, as it was posted as regular mail, there was no tracking/receipts to evidence.’
Entirely consistent with these facts is Kelvin Law’s statutory declaration made on 10 May 2020:
I received the documents from the immigration department regarding the cancellation of my fathers [sic] Australian visa from my dad sometime between 20^th and 30^th of March 2019. I was instructed to both check for the validity of answers in the document by my father and to post the documents to request for revocation of mandatory cancellation of his visa. I did as per my father’s instructions within the next 3 days. I had posted the documents to GPO Box 241 Melbourne Victoria 3001 at the post office at Martin Place in Sydney NSW, during my lunch break at work. I had posted the documents with regular mail which costed around $4 and unfortunately the postage was untracked. I recall that we heard back from the department in late June-July where my dad was told that the department had not received representations from my father and as such, the cancellation of his visa was sustained. Within that week I called the department using the phone number provided by my father and was instructed by a staff member of the National Character Consideration Centre (NCCC) to resend the documents to the department via the email… on the 14^th of July 2019. After which, I received an email from the NCCC on 15^th of July 2019 requesting for dates for when I had posted the revocation request to which I responded within 24 hours. In late November 2019 my father received a reply to his request for revocation to the cancellation of his visa from the department, where the department required further information regarding his travel into Australia. I took this request for further information as implied acceptance to the representations that was resent in July.
I note also that Mr Law had his visa cancelled in 2017 under similar circumstances. The cancellation was revoked and the fact that Mr Law and Kelvin Law had been through the process of revocation shortly before this application indicates that they were familiar with the requirements of submitting a valid revocation request.
I found Kelvin Law to be a credible witness whose evidence was considered, direct and consistent. The Tribunal concludes that he posted the request for revocation dated 24 March 2019, to the NCCC from Martin Place post office as per his statutory declaration above.
CONSIDERATION
The Respondent concedes that the delegate accepted the representations, and made a decision not to revoke the cancellation, and proceeded on the basis the condition in paragraph 501CA(4)(a) of the Act was satisfied. At the hearing, the representative for the Respondent confirmed that the error was identified when compiling the Respondent’s Statement of Facts, Issues and Contentions for Mr Law’s application before the Tribunal.
It is submitted on behalf of the Respondent that Mr Law’s application should be dismissed as the representations were not made within the requisite 28 days and consequently the Tribunal has no power to revoke the cancellation. It is noted that pursuant to the Migration Regulations, Mr Law was taken to have received the invitation on 27 March 2019, seven working days after the date of the letter which determines the last day for making representations was 24 April 2019. The representations were not made until 14 July 2019, some 81 days late. Consequently, the decision not to revoke the mandatory cancellation of Mr Law’s visa was a decision in fact, but it is one without statutory authority. To put it more simply, the decision not to revoke has no practical implication or consequence for Mr Law.
There is precedent for the Tribunal making decisions where the decisions themselves have been invalid. In Re Upton and Department of Transport (1977) 1 ADL 150, the applicant’s license was suspended without the mandatory procedure being complied with which rendered the decision invalid. The decision was appealed and the Tribunal in that matter determined that the Tribunal had the power to review the decision.
The issue was most fully considered in Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) [1978] AATA 49, where the Collector of Customs had made a decision without authority, but it was determined that the decision, though invalid, could still be reviewed by the Tribunal. In this case, the Tribunal decided that the decision had been made without authority and set aside the decision. This decision was upheld before the Federal Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21.
As the Tribunal has jurisdiction to review the non-revocation decision, the question becomes how to deal with a decision which lacks statutory authority. In Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 (“Ahmed”), the Full Court considered whether accepted inadequacies in a notification given to a visa holder under section 119 of the Act meant that the function of the Tribunal on review was limited to recognising that the delegate had no power to cancel the visa. The Full Court held that a failure to comply with section 119 did not precondition the exercise of the delegate’s cancellation power and therefore did not impugn it.

The Respondent submits that the crucial difference between Ahmed and Mr Law’s application is that, in this matter the requirement to make representations in accordance with the invitation directly preconditions the power to revoke the mandatory cancellation.
In support of this, the Respondent directs the Tribunal to a number of cases where similar circumstances have been considered.
The appeal raises similar issues to that of Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456 (“Li”) where regulation 2.10(1)(b) required that additional information had to be supplied to an office of Immigration but the applicant had supplied the requisite information to the former Refugee Review Tribunal (“RRT”). In that matter, the Full Court determined that there being no valid application before the RRT, the RRT had no power to make a decision not authorised by the Act or the Regulations. It is relevantly observed at [82]:
It strains language to say that the powers which are conferred on the RRT for the purposes of the review of a RRT-reviewable decision include the power to receive essential components of the prescribed application form. Regulation 2.10(1)(b) requires an application to be made at an office of Immigration in Australia. That includes all essential components of the prescribed application form. Section 415(4) of the Migration Act makes it clear that the RRT cannot make a decision not authorised by the Migration Act or the regulations. A decision to refuse a visa where no valid application for a visa has been made is a decision not authorised by the Migration Act or the regulations. The fact that the Migration Act preserves an unauthorised decision by a delegate, so as to make it subject to review by the RRT, does not confer on the RRT greater powers than a delegate could ever have properly exercised in relation to an invalid application.
Similarly, in this matter, the Tribunal cannot exercise greater powers than the delegate of the Minister. Just as the delegate of the Minister did not have the power to revoke the mandatory cancellation of the visa in March 2020, nor does the Tribunal.
Pertinently, in the matter of Sillars and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 994 (“Sillars”), Senior Member Tavoularis considered a matter where the applicant was seeking revocation which was made 50 days after the notice. Senior Member Tavoularis considered whether the Minister was estopped from contending that the Tribunal cannot proceed with the review of the substantive application. Citing Comcare v Heffernan [2011] FCAFC 131 in which the Full Court held that there can be no estoppel to preclude a statutory authority from performing its public duties other than in accordance with its statutorily mandated power, he notes that the requirement to make representations and to do so in a prescribed manner is a matter governed by duly managed legislative intent and is not discretionary in any way. He concludes at [39]-[40]:
While this is clearly a matter of regret, it does not provide an imprimatur for this Tribunal to act beyond its jurisdictional power in circumstances where the Applicant’s non-compliance with s501CA(4)(a) is plain and otherwise incapable of subsequent cure.
Accordingly, while the Tribunal has jurisdiction to receive and entertain the Applicant’s non-revocation decision made pursuant to s501CA(4) of the Act, the Tribunal is statutorily precluded from disturbing the operative effect of that decision.
On behalf of the Applicant it was submitted that there are important distinctions between Sillars and the matter being considered. Specifically, the applicant in Sillars did not make representations until more than 28 days after notification, and the nature of the offending was different. The Tribunal considers the nature of the offending is not relevant to the matter at law but the timing of the request for revocation is.
The Respondent submits that there is no evidence the documents were received from Mr Law and the email correspondence between Kelvin Law and the NCCC confirms that they were not received.
As identified in Sillars, on a plain reading of subsection 501CA(4), it is apparent that one of the two mandatory conditions has not been met in that Mr Law has not made representations in accordance with the Minister’s invitation. The invitation gives rise to an obligation on the Applicant to ‘make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.
The “regulations” referred to are the Migration Regulations and as noted by Senior Member Tavoularis at [15]:
… they do not connote flexibility or permissiveness. This inflexibility is supported by the language of s501CA(4)(a) which allows the Respondent Minister to revoke the original decision if the representations are not made in accordance with the invitations pursuant to s501(CA(3)(b).
The Applicant’s representative did not directly address the issue of whether there was any statutory power for the Tribunal to make a decision with operative effect in this matter. It was submitted that the evidence, including that of Kelvin Law, supports the representations being made and that the Tribunal, based on the statutory declarations of Mr Law and his son, should accept that the request for revocation was sent within time in March 2019. As noted above, this is accepted by the Tribunal, but it does not alter the fact that the requirements of the invitation were not met.
The regulations that apply to subsection 501CA(4) state that the representations must be made within 28 days. The regulation does not say anything about representations being sent or received; only that they must be made. It is clear in the invitation that what is required by the invitation is that representations are received. This is confirmed in the wording of the actual invitation which states that ‘it is essential that the Required Information is received by the Department within 28 days’.
Consequently, the Tribunal may review the decision not to revoke the cancellation of Mr Law’s visa, but it is not open for the Tribunal to revoke the cancellation and reinstate his visa. To do so would be to make a decision which was beyond the authority bestowed on the Tribunal by the Act or the Regulations.
WOULD MR LAW’S APPLICATION HAVE SUCCEEDED?
Having considered the preliminary question and determined that the decision currently before the Tribunal is a decision made in fact but not law, I will nonetheless consider whether Mr Law’s application would have been successful.
In considering this application, I do so in the interests of providing Mr Law with some certainty as to the outcome should the power to revoke the mandatory cancellation have been enlivened.
Mr Law’s offending
The following summary of Mr law’s offending is based on the national criminal history check which was provided in the G Documents and was set out by the Respondent:
Mr LAW has incurred a number of terms of imprisonment ranging from two to 21 months imprisonment…
Mr Law… appeared in court on six occasions to face multiple charges related to driving offences and resisting police. He also has one destroy or damage property conviction from 2010.
On 9 January 2019, Mr LAW was convicted in the Local Court of New South Wales of:
-    police pursuit – not stop – drive dangerously – 1^st off – one year and three months imprisonment
-    refuse or fail to submit to breath analysis 2^nd off – six months imprisonment concurrent
-    Drive motor vehicle during disqualification period 2^nd off – six months imprisonment concurrent
-    Resist officer in execution of duty conviction recorded
Following a family Christmas celebration during which Mr LAW consumed ‘a lot of alcohol’ he and his wife had an argument as she locked him out of their house. Mr LAW decided to drive to a nearby park to sleep. Police directed him to pull over but accelerated away and a police pursuit occurred. Mr LAW drove through a red light and collided with a concrete barrier. When being arrested he held onto the steering wheel when being removed from his car and used his arms to raise himself when he was ordered to lie on the ground and put his hands behind his back. Mr LAW’s legal representative told the court that he had sustained fractured ribs in the collision and the police put him face down on the ground with his arms behind his back which was very painful, so he was trying to support his weight with his arms. Magistrate Walsh accepted that Mr LAW’s injuries providers some excuse for his behaviour but said ‘the fact sheet discloses that he was uncooperative’. Magistrate Walsh stated that he assessed the objectives seriousness of the driving matters as significant and noted that Mr LAW had ‘an appalling record of drink-driving and disobeying Court’s orders.’…
Mr LAW incurred three previous sentences of incarceration. On 5 September 2017, he was convicted in the Local Court of New South Wales of Not stop at stop line (intersection with no lights) – fined – and Drive motor vehicle during disqualification -2nd off, for which he was sentenced to 12 months imprisonment (eight months non-parole period). On the same day two previous convictions for Resist or hinder police in execution of duty were called up and he was resentenced to two and three months imprisonment, respectively.
Mr Law also has a significant record of driving offences and is disqualified from driving until 2037. His NSW driving record lists offences for each year he has resided in Australia beginning in 2010 and include negligent driving, driving with an unrestrained passenger under 16 years, disobeying traffic lights, exceeding the speed limit and drink driving.
EVIDENCE
Evidence of Mr Law
Mr Law expressed his remorse for his offending and the shame it has brought his community and his family. He said that he was particularly sorry for the impact his imprisonment has had on his family and the hardship his inability to contribute financially has caused his wife and children. He also regrets that because he was in detention, he was unable to pay respects to his father who recently passed away in Hong Kong.
He told the Tribunal that because of his actions he has become a Christian and attends church whilst in immigration detention. He said he is prepared to do whatever it takes to earn the trust of those who can give back his visa.
Mr Law appreciates that his offending is linked to his abuse of alcohol. He says he has been sober since his arrest and imprisonment on 22 December 2018. He submits that he has sought further treatment to manage his drinking, but he was refused access to treatment in gaol because he had been sober for an extended period at that time. He writes in his application for revocation, dated March 2019, that he had attended an alcohol addiction course in gaol and in the ‘coming week’ was due to see a counsellor whilst in gaol.
He first realised that he had a problem with drinking in 2015 after his youngest daughter was born with a hearing impairment and he was sad, confused and stressed. He says he drinks beer and does not use other recreational drugs which the Tribunal accepts. He was asked if he has any plans to initiate other measures to help manage his drinking and he said he does not but has a willingness to consider doing so. He says that he doesn’t have an addiction to alcohol any longer and does not intend to drink any alcohol in the future.
Mr Law says that he has lived in Australia for 11 years and has not had the opportunity to make any trustworthy or close friends and only has acquaintances.
He said that his wife does not work and that he is the only income earner in the house. He pays the mortgage and takes care of, and provides for, his children and his family. He says that since he has been in gaol and detention, his wife has had to borrow money from family and friends and that they now owe up to $20,000 to family and friends.
Mr Law says that he is very close to his youngest child, Charmaine, who has a serious hearing impairment. He said whilst he was in gaol she had an operation and he was unable to be there for her and accompany her and that as a result he feels like a failure. Charmaine is eight years old and Mr Law said before his imprisonment he prepared breakfast for her, dressed her and sent her to school. After school he took care of her whilst his wife did domestic chores. He told the Tribunal that there was a lot of extra work required to care for Charmaine because she doesn’t speak and is profoundly hearing impaired. He says that he bathes her, teachers her how to dry herself and he and his wife are trying to learn sign language so they can communicate with Charmaine. He said that his relationship with his daughter is very close. Whenever she visits him whilst in detention they would talk, and she would cry out to him because she does not want to leave.
Prior to immigrating to Australia, Mr Law owned a retail shop in Hong Kong which sold mobile phones. He said that he contacted his brothers recently because of the passing of his father. He said they have contact with each other once a year during the New Year’s Day.
He was asked about the first time his visa was cancelled and specifically if the circumstances of this application are different. He told the Tribunal that he is now a Christian.
It was put to Mr Law that whilst he says he is remorseful now he also said he was remorseful the previous time his visa was cancelled but he continued to offend. He said that in 2017 he was arrested for driving without a licence, not drinking and driving, and that it was different. It was noted that the revocation on the first occasion occurred in December 2017 and he reoffended in December 2018. He said on the day of 22 December 2018 there had been a Christmas party when he had a big argument with his wife, and she ordered him out of the room. He said he was so angry, and he had alcohol which drove him to do something crazy that he didn’t want to do. He said it was a mistake and he reiterated his remorse.
He said he realises the consequences having been in gaol and detention for such a long time, particularly as they relate to his family. He said that since becoming a Christian he makes promises to God that he will not do anything wrong again. He said he’d been depressed, and he wants another chance and he won’t drink again.
Evidence of Niem On Quan
Ms Quan is Mr Law’s wife. She says she has a difficult life because she has four children and the youngest, Charmaine, is only eight years old.
Ms Quan said that Charmaine is fond of Mr Law and enjoys swimming with him and when he takes her to the park and cycling. As Charmaine is unable to speak and has difficulties with her speech development Ms Quan is hoping that Mr Law can continue to help her learn to talk.
Ms Quan told the Tribunal that her household is very busy, and she has school fees in arrears. She confirmed that her eldest son Kelvin works as well as studying and helps her financially by providing $600 a month. Nonetheless she said she has struggled financially since Mr Law was imprisoned.
Though she has spent a lot of time in Hong Kong, Ms Quan contends that she cannot live in Hong Kong because of the special needs of Charmaine and that her other children are not entitled to Hong Kong ID cards. She said that Charmaine is receiving three types of therapy funded through the National Disability Insurance Scheme (NDIS) and these types of services are not able to be provided in Hong Kong. She says she knows this because she enquired with people from an organisation in Hong Kong; but she cannot remember the name of the organisation.
Ms Quan said she came to Australia when she was 16, she is an Australian citizen and she wants to stay in Australia. She said that if Mr Law is returned to Hong Kong the amount of money he could earn there would not be sufficient for him to live and he would be unable to send money to support her and the children which would cause significant financial hardship for her and her children.
Evidence of Kelvin Law
Kelvin Law (“Kelvin Law”) confirmed that his father is an important part of the family and running of the household; and that he did not realise the extent to which his father contributes. He said that having his father away has been detrimental to him emotionally because of the impact it has on his mother. He says that his sister Charmaine has been held back and has suffered the most because of her father’s absence. Kelvin Law says that Charmaine requires intensive care and assistance from both parents. He told the Tribunal that his mother is so busy with other duties that she is unable to provide that level of care whilst his father has been absent.
Kelvin Law confirmed that Charmaine is very attached to Mr Law and calls him and speaks to him frequently. He claims that his sister is in a development delay because of her father’s absence.
In relation to his father’s drinking, Kelvin Law said that Mr Law now realises he has an alcohol problem and has made express promises to his son that he will not drink if released back into the community. He said that his grandfather passing away had also made Mr Law realise how serious the situation is.
Kelvin Law was asked how he can be confident that his father would not drink or offend again, and he said he identified two factors which are different. The first, he said is that the length of incarceration is a lot longer and that it had detrimental effects on his family; and the second thing is that Mr Law now recognises that he has an alcohol problem and he has made a consistent promise that he won’t drink again. He said he has had long discussions with his father, and his father is extremely remorseful. He said Mr Law now knows that his actions have implications on his family.
Evidence of Anthony Law
Anthony Law said that his sister Charmaine knows how to call his father and that she misses him a lot. He said he missed his father as well.
Evidence of Samantha Law
Samantha Law told the Tribunal that it is difficult for her family to manage with their father away, particularly financially. She said the impact of his absence on her is emotional and also requires her to contribute more to the running of the house.
Evidence of Zhi Shan Zhang
Mr Zhang has known Mr Law since 2010 and hired him as a painter. He testified as to Mr Law’s strong work ethic and honesty. He also said he will help him by driving him to and from work should he be released back into the community.
Evidence of Gordon Duong
Mr Duong confirmed that he has worked with Mr Law and has known him for 20 years. He submits he is a good father and remorseful about his offending.
PRIMARY CONSIDERATIONS
Primary Consideration A: Protection of the Australian community
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further 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.
It is submitted on behalf of Mr Law that his offending was primarily related to traffic offences except for his 2010 charge relating to damage of property. It is submitted that the offences were not violent or directed at women, children or other vulnerable members of the community. In relation to his offending in which he resisted an officer in the execution of his duty, it was in circumstances where Mr Law suffered fractured ribs following a car accident and was in severe pain.
His representative submits that Mr Law should be viewed as a person with an alcohol problem in need of support and care and that his difficulties with alcohol go to the heart of criminal intent and recidivism. In relation to his risk of reoffending, it is submitted that it should be seen as being very remote. It is submitted that Mr Law’s application is distinguishable from the first cancellation of his visa because the court in sentencing Mr Law was mindful of the deterrent potential the sentence imposed.

The Respondent notes that Mr Law has appeared in court on several occasions to face multiple charges relating to driving offences between 2016 and 2019 and the recidivist nature of his offending.
During his sentencing on 9 January 2019, the sentencing judge, Magistrate Walsh accepted that Mr Law’s behaviour was in part attributable to the fact that he had been injured in the accident but the circumstances leading to the injuries indicate the seriousness of the offending:
…[Mr Law] was driving a motor vehicle at about 4am. It would appear from the agreed facts sheet that he was affected by alcohol. He had difficulty controlling his motor vehicle. Police observed him and directed him to pull over. He did not pull over. He accelerated away, the police activated their lights and sirens and a police pursuit occurred. He drove through a red light and collided with a concrete barrier. He was injured in the motor vehicle accident, was unable to get out of his door, and was urged by the police to get out of the passenger door.
Magistrate Walsh went on to note that Mr Law had an ‘appalling record of drink driving and disobeying Court’s orders… and has also resisted police in the past’.
It is of concern to the Tribunal that Mr Law has also previously been sentenced to a term of imprisonment in 2017 and on that occasion his visa was also cancelled. The decision to revoke the cancellation was made in December 2017; and a little over one year passed before the offending which enlivened the current cancellation took place.
Mr Law has relied on his family to write references for him on multiple occasions to assist him at court or with visa revocations. Before the Tribunal are three references from his son Kelvin – one dated April 2020 for the current application, an undated reference for one of his appearances at Bankstown Local Court and another from September 2017 for his appearance at Burwood Local Court. Kelvin Law writes in September 2017 of his ‘disbelief’ at his father’s breach of his good behaviour bond given the changes that Mr Law had made to his lifestyle. He maintains in his most recent reference that Mr Law now has an understanding of his alcohol problem and he told the Tribunal that, combined with the length of Mr Law’s incarceration since 2018, he maintains confidence that his father will not reoffend.
A report before the Tribunal by registered psychologist Hasan Cinar was provided on behalf of Mr Law. Mr Cinar concludes that Mr Law has a low to moderate risk of reoffending. The report is based primarily on a three-hour telephone interview with Mr Law which is not unusual in the current circumstances where Covid-19 may reduce the capacity for face to face meetings. Whilst Mr Cinar’s report includes the results of the ‘Alcohol Use Disorders Identification Test’, the test and report provides little in the way of additional detail or insight into Mr Law and his offending. The conclusions of Mr Cinar are not reassuring to the Tribunal in circumstances where Mr Law has such a persistent history of reoffending which has become gradually more serious and substantially more frequent over time.
By his own testimony, Mr Law has an understanding of the nexus between his drinking and offending. He is adamant that he has overcome his alcohol dependency and will not drink again. A report from DAMEC Counselling Service from March 2017 states that Mr Law was remorseful for his behaviour and had a strong desire and motivation to address his alcohol misuse. The author writes that Mr Law would benefit from further counselling and psychological interventions and it is ‘strongly recommended’ that he continue to attend individual counselling.
In a statement to the Bankstown Local Court, Mr Law writes that he ‘started taking alcohol as an easy escape’ from the family pressures and stress that arose as a consequence of Charmaine’s health concerns. He writes that he is determined to change, is attending drug and alcohol counselling and has ‘quit drinking completely’.
In his current revocation application, Mr Law writes that he has ‘attended alcohol addiction course [sic] and will in coming week see counselling whilst in gaol’. He did not receive counselling, but he states that was because he was unable to access it.
It is apparent that Mr Law has a serious problem with drinking in that it is either the genesis or cause of his most serious offending. He appreciates that he should not drink and understands the reasons why. But it is not apparent that he understands what he is required to do in order to abstain completely. It was recommended he continue to receive treatment in 2017 but he chose not to, and subsequently reoffended. He now contends he does not require further treatment to maintain abstinence, though is willing to countenance it. The Tribunal has concerns that whilst Mr Law has abstained in the controlled environments of prison and detention, his resolve has not been tested in the community. In the absence of evidence that Mr Law would follow through with ongoing support and treatment for his drinking, this is of significant concern.
In light of all the evidence and the lack of rehabilitative efforts there is a real risk that Mr Law may reoffend. These risks are serious. I have had regard to the principle that the Government is committed to protecting the Australian community from such serious harm caused by the conduct of non-citizens and I conclude that the need to protect the Australian community from the effects of offending of the nature of that which Mr Law has engaged weighs heavily in favour of not revoking the cancellation of Mr Law’s visa.
Primary Consideration B: The best interests of minor children
Clause 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Clauses 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Clause 13.2(4) of the Direction further stipulates that when considering the best interests of the child, the following factors must be considered where relevant:
a)    The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)    The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)    The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or 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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Mr Law has four children, two of whom are minors. Samantha is 16 years old and in a statement she writes that it is extremely hard for her to live a normal life whilst her father has been in gaol and detention. She has been emotionally impacted and suffered because she has had to assist her mother financially and with household chores in her father’s absence. She says that Mr Law is a crucial supporting figure in her life.
Mr Law’s second daughter Charmaine has severe hearing loss in both ears and requires intervention and intense support from her family. She is currently receiving assistance through the NDIS. The evidence before the Tribunal strongly supports the conclusion that Mr Law has a strong relationship and unique bond with Charmaine which is an important part of her development.
The evidence strongly supports the conclusion that Mr Law is an important part of his children’s lives and his presence in the household is a direct benefit to the children and also indirectly important as he provides financial and other support that takes pressure off the children. I accept that it would not be in the best interests of the children for Mr Law to return to Hong Kong.
Mr Law is aware the detrimental effect his behaviour, which has led him to be imprisoned and detained, has had on the welfare of his children. Ms Quan has never worked in Australia and is currently financially dependent on social security payments and financial support from her family.
I find that it would be in the best interests of Mr Law’s minor children for the visa cancellation to be revoked and I place significant weight on this factor.
Primary Consideration C: Expectations of the Australian community
In making an assessment of the weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to: (1) the Government’s views in this respect; and (2) any overarching principles and guidance provided by the Direction.
Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that a non-citizen should not hold a visa.
In FYBR v Minister for Home Affairs,[1] Perry J observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65 [now Direction 79] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”
[1] [2019] FCA 500 (“FYBR”).
It is not for the decision maker to assess what the expectations of the Australian community are for the purposes of applying this consideration. Rather, the expectations of the community that decision makers are required to consider are those set out in the Direction.
It is clear from the Direction that the Australian community expects non-citizens to obey Australian laws while in Australia. In this case there is clear evidence that Mr Law has committed repeated offences which have placed members of the community at significant risk and has been sentenced to terms of imprisonment as a consequence.
I find that the expectations of the Australian community would be that Mr Law not hold a visa. I give substantial weight to this consideration.
OTHER CONSIDERATIONS
Other Consideration A: International non-refoulement obligations
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.
No evidence was advanced that is relevant to this other consideration. Accordingly, this other consideration is afforded no weight.
Other Consideration B: Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides that decision-makers are to have regard to how long the non-citizen has resided in Australia. Mr Law has lived in Australia since October 2009 when he was 41 years old.
He writes that he does not have close friends in Australia but has ‘acquaintances’.
The evidence supports his contention that he is the sole bread winner for his family and that he provides important financial and practical support for his wife and four children.
It is also to Mr Law’s credit that he has maintained employment since he has been in Australia and contributed to the community through working as a painter and supporting his family. The removal of Mr Law from Australia will have ongoing and adverse consequences for his wife and children.
Mr Law says he now attends church and has provided a statement from the Central Baptist Church confirming his attendance at church meetings beginning August 2019. I place limited weight on his church membership in light of how recently his attendance began and the absence of evidence indicating meaningful ties to other members of the congregation.
Other Consideration C: Impact on Australian business interests
This part of the Direction stipulates that this consideration should only generally be given weight where non-revocation would significantly compromise the delivery of a major project or the delivery of a major service in Australia. There is no evidence from either party that this was the case in the Applicant’s particular circumstances.
Other Consideration D: Impact on victims
The Direction provides that decision-makers should take into account the impact on victims where information is available. There is no evidence before me of any victims of the Applicant’s offences and consequently this consideration weighs neutrally.
Other Consideration E: Extent of impediments if removed
This part of the Direction requires the Tribunal to consider the extent of impediments the Applicant may face if he is repatriated to Hong Kong, in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of that country. Factors that should be taken into account are a non-citizen’s age or health, any substantial language or cultural barriers and any social or medical support available to them in that country.
Mr Law lived in Hong Kong until he came to Australia. There are no language or cultural barriers for him to overcome and he has two brothers and his mother living there.
Certainly it is to be expected that he will face practical and emotional hardship upon a return to Hong Kong due to his separation from his family members.
The Applicant will also have access to health services, treatment and welfare services in Hong Kong.
Overall, this factor weighs in favour of revocation of the cancellation decision but to a limited degree.
CONCLUSION AS TO WHETHER THERE IS ANOTHER REASON TO REVOKE THE ORIGINAL DECISION
I have considered the specific circumstances relating to the Applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations so as to determine whether there is another reason to revoke the cancellation decision.
It is a privilege for non-citizens to be able to live in Australia and the Australian community has an expectation that this privilege will not be abused. Mr Law was afforded a ‘second chance’ by the criminal justice system and issued a bond which was subsequently breached. Similarly, his visa was previously cancelled, and the cancellation subsequently revoked only to have the mandatory cancellation enlivened once again through further offending. His offending is serious and primary considerations A and C weight heavily in favour of non-revocation.
Primary Consideration B weighs heavily in favour of revocation. Mr Law contends that he is a breadwinner and a critical element of his family. He has also proven to be reliant on his family members, particularly his eldest son Kelvin and his wife, to assist him through the many dealings with the authorities which have resulted from his offending. Through his incarceration and now detention, he has required his wife and children to pick up the pieces and find a way to manage without him.
The Tribunal accepts that Mr Law’s absence is a considerable burden to his family. The evidence supports he is an important financial contributor and has worked and provided consistently. In spite of the difficulties his behaviour has brought upon them, his family clearly have deep affection toward Mr Law. His behaviour may have, at times, indicated otherwise, but Mr Law obviously takes his responsibility to provide for his wife and children seriously. Of particular note is the importance of his support for Charmaine who requires intense and demanding assistance and would benefit from Mr Law’s presence.
Mr Law has lived in Australia for a relatively short period of time. By his own admission he has not formed significant relationships in the community outside of his family.
Having regard for the entirety of the circumstances and all the evidence before me, I conclude that the considerations in favour of non-revocation outweigh those in favour of revocation. In circumstances where it was open to the Tribunal to revoke the mandatory cancellation and reinstate Mr Law’s visa, the Tribunal would not have done so.
DECISION
The reviewable decision made on 2 March 2020, being the decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation decision, is set aside and the matter is remitted to the Minister with a direction that the original decision of 18 March 2019 not be set aside.

I certify that the preceding 125 (one hundred and twenty -five) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

..............[sgd]..........................................................
Associate
Dated: 25 May 2020

Date(s) of hearing: 14 and 15 May 2020

Solicitors for the Applicant: Nikjoo Lawyers

Solicitors for the Respondent: MinterEllison

[2020] AATA 1469

25 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice

Date(s) of hearing:	14 and 15 May 2020
Solicitors for the Applicant:	Nikjoo Lawyers
Solicitors for the Respondent:	MinterEllison