LYPM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 2601

LYPM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2601 (25 July 2022)
Division:GENERAL DIVISION
File Number: 2022/3609
Re:LYPM
APPLICANT

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

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:25 July 2022
Date of written reasons: 16 August 2022
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 3 May 2022 is set aside and substituted with a decision to revoke the cancellation of the Applicant's Class TY - Subclass 444 Special Category (temporary) visa.
......................................[sgd]..................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa under s 501CA(4) – character test – substantial criminal record – juvenile offending – conviction not recorded – offending as young person – drug use – exercise of discretion to revoke cancellation of visa – Ministerial Direction No. 90 – primary and other considerations – protection of Australian community – strength, nature and duration of ties to Australia – impediments to removal – mandatory cancellation of visa revoked - decision under review set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Anderson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 205.
FYBR v Minister for Home Affairs [2019] FCAFC 185
He and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 797
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2020] FCAFC 87
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson [2022] FCAFC 28
Pihere and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4236
Shi v Migration Agents Registration Authority [2008] HCA 31
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
16 August 2022

The applicant is 22 years old and has been in prison or immigration detention for all but six months of his adult life. He has been in immigration detention for over 12 months.[1] His visa was cancelled by a delegate of the Respondent (the Minister), and a delegate refused to revoke that decision. In these proceedings, LYPM requests the Tribunal to review the refusal decision on the merits.[2] If the decision is affirmed, he is liable to be removed to New Zealand, a country he has never visited.[3]
[1] The applicant was transferred from prison to immigration detention on 2 June 2021: S95/1143.
[2] The Tribunal is established under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) for the purpose of reviewing specified governmental decision, which include decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa: see Migration Act, s 500(1)(ba).
[3] MEM39 [110].
I have made an Order to anonymise his identity, given certain details relating to his childhood.
According to a statement he provided for these proceedings, the applicant states that he was born in Samoa.[4] He was one of 11 children. His birth mother neglected him as an infant. His aunt took him away and placed him with friends or relatives (the record is not clear) who raised him until his tenth year. He refers to these individuals as his ‘mum’ and ‘dad’. His mum brought him to Australia when he was nine, while his dad stayed in Samoa. The following year she returned to Samoa, leaving him in the care of an aunt and uncle (once again the precise familial relationship is not clear).
[4] Statement dated 13 July 2022 [110]: MEM39; G21/70.
His teenage years were difficult. He did not feel wanted by his adoptive parents (whether there was a formal adoption is also unclear). He says that he was mistreated. He started using drugs as a teenager, marijuana and methylamphetamine. He left school in Year 11. In his mid-teens he left home for a while - sometimes couch surfing, occasionally homeless, sleeping in parks around Brisbane. He suffers ongoing feelings of parental rejection and loss.
Offending record
His offending commenced as a 16 year old. He was arrested for numerous offences, including public nuisance, trespass, wilful damage, common assault, and stealing.[5] He was sentenced to a good behaviour bond and probation with no conviction recorded.
[5] On 16 December 2016, 11 January 2017, and 28 March 2017: G6/30.
His offending continued. On 30 January 2018, a group of five youths assaulted and robbed a driver for hire in Woolloongabba and stole his car. He was one of the offenders. This gave rise to four offences: common assault, two counts of unlawful use of motor vehicle and one count of robbery with actual violence.[6]
[6] G7/31.
On 6 September 2018, he came before the Children’s Court of Queensland. He pleaded guilty. The Court imposed Conditional Release Orders for each of the offences, specifying a period of detention, an order that the detention be suspended immediately and that he be released immediately. The nominal detention periods ranged from 3 to 15 months. The Children’s Court ordered that the conviction not be recorded.[7] For reasons considered below, this is significant.
[7] G6/30.
He turned 18 in April 2018. In October 2018, a warning letter was sent to his carer because of his behaviour.[8] It had little effect. Between 19 and 22 November 2018, he committed a number of serious criminal offences over a five day period. He committed further offences on 28 April 2020.
[8] S21/192.
On 30 May 2019, the Children’s Court revoked the Condition Release Order it had made on 6 September 2018, and ordered that he be released after serving half of the 15 months detention.[9] Again, the court ordered that the convictions not be recorded.
[9] G6/29.
On 21 April 2020, he was sentenced (as an adult) by the District Court of Queensland to 11 months imprisonment for the offences committed between 19 and 22 November 2018.[10] He was released on probation on 21 April 2020.[11]
[10] See National Coordinated Criminal History Check: G6/28; G10/38, G11/44.
[11] The applicant had been in custody for a lengthy period - 17 months, of which 11 months related to this offending: G10/40.
On 4 August 2020, he was sentenced to ten months imprisonment in the Brisbane Magistrate’s Court for offences committed on 28 April 2020.[12]
[12] G13/48-49.
On 29 April 2021, a delegate of the Minister cancelled his Class TY – Subclass 444 Special Category (Temporary) visa the character provisions of the Migration Act 1958 (Cth) (‘the Act’).
13.The delegate found that he was sentenced on 6 September 2018 to 15 months detention by the Children’s Court of Queensland and therefore had a ‘substantial criminal record’ by reason of paragraphs 501(6)(a) and (7)(c) of the Act.[13] The delegate also found that the applicant was serving a term of imprisonment on a full time basis, having been sentenced on 4 August 2020 to ten month’s imprisonment as an adult.[14]
[13] G19/60.
[14] G19/59. Section 501(3A) relevantly provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
14.On 6 May 2021, the applicant made representations, in accordance with an invitation from the Respondent, seeking revocation of the mandatory cancellation.[15] On 3 May 2022, a delegate of the Respondent decided not to revoke the cancellation decision.[16]
[15] G21/68.
[16] G3/9.
15.On 5 May 2022, the applicant applied to the Tribunal for review of the delegate’s decision.[17]
[17] G2/3.
16.The hearing was set down for 12 and 13 July 2022, with a decision due no later than 26 July 2022.[18] On 7 July, the applicant’s solicitor requested an adjournment due to the size and volume of the Respondent’s Supplementary documents (1156 pages) and the complexity of the case as a result of a decision of the Full Federal Court handed down in February, and to consult counsel.[19] Mindful of the deadline, I postponed the hearing as far as possible, being 18 July, with a run over to the 22 July if required. This allowed a weekend and at best two working days to resolve the application, the deadline being the following Tuesday.
[18] If an application is made for review of such a decision, and a decision has not made within the period of 84 days after the day on which the person was notified of the decision under review, then the Tribunal is taken, at the end of that period, to have made a decision under section 43 to affirm the decision under review: Migration Act, 500(6L)(c).
[19] Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23 (Thornton) at [36], per Derrington J, (Katzmann and Banks-Smith JJ concurring).
17.The hearing was plagued with communication problems. The legal representatives were in separate locations in Brisbane and the applicant was in a detention centre with, frankly, inadequate communication facilities. As often happens, the video link did not perform consistently, and an audio link had to be established with the applicant’s mobile device. As foreshadowed by the applicant’s solicitor, the Tribunal had to absorb an abundance of materials within a very short timeframe. A transcript was not obtainable for the second day of the hearing. Mindful of the statutory exhortation to provide a review mechanism that is ‘fair, just, economical, informal and quick’, the Tribunal has set about its task with as much expedition and enthusiasm as the circumstances allow.[20]
[20] Administrative Appeals Tribunal Act 1975 (Cth), subsection 2A(b).
18.As foreshadowed by the applicant’s representative, the Tribunal received a large volume of material. The Respondent provided documents (156 pages) pursuant to section 500G(2) of the Act (the G docs), supplementary documents (1156 pages), and an extensive list of authorities. The Respondent also provided a Statement of Facts, Issues and Contentions, (RSFIC) with Annexures, dated 30 June 2022, settled by counsel who appeared for the Respondent.
The applicant provided two bundles of evidence totalling 49 pages, and Statement of Facts, Issues and Contentions (ASFIC) dated 13 June and a Statement in Reply dated 13 July 2022.
The parties also provided an Index of supplementary materials relating to the potential impact of a decision on 25 February 2022 of the Full Court of the Federal Court in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23 (Thornton), which concerned the proper construction of subsection 85ZR(2) of the Crimes Act 1914 (Cth) and subsection 184(2) of the Youth Justice Act 1992 (Qld).
21.Subsection 184(2) provides:
Except as otherwise provided by this or another Act, a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose (emphasis added)
22.Subsection 85ZR(2) relevantly provides:
Despite any other Commonwealth law or any Territory law, where, under a State law … a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State … the person shall be taken, in any State … in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State … never to have been convicted of that offence (emphasis added)
23.In Thornton the Full Federal Court held that the combined effect of these provisions was that where no conviction is recorded following a finding of guilt, a juvenile offender is taken never to have been found guilty of the offence, and the Minister is prohibited from taking the conviction into account where there has been an order that no conviction be recorded.[21]
[21] Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23 [36] per Derrington J, (Katzmann and Banks-Smith JJ concurring).
24.It is common ground that on 6 September 2018 the applicant received a sentence (the 6 September sentence) imposed by the Children Court of Queensland in Brisbane of 15 month’s juvenile detention, subject to immediate release, with an order that the conviction not be recorded. As noted above, the mandatory cancellation decision made on 29 April 2021 referred to the 6 September sentence as a basis for finding that the applicant did not pass the character test, as did the non-revocation decision made on 3 May 2022, with which this Tribunal is concerned.[22]
[22] Mandatory cancellation decision made on 29 April 2021: G19/60; Non-revocation decision made on 3 May 2022: G5/14 [6].
25.Counsel for the Respondent submitted that it was an objective fact that the applicant had been ‘sentenced’ to a period of imprisonment of 12 months or more, and a finding to that effect did not in any way depend on a reference to his ‘conviction’ as a juvenile.[23] Therefore Thornton did not prevent the Tribunal finding on the same ground as the delegate that the applicant failed the character test. He emphasised that the words ‘sentenced’ and ‘conviction’ connoted distinct concepts. Much time was spent on this contention, but ultimately, it is one that the Tribunal is not required to resolve, for the reasons that follow.
[23] G19/60.
26.I emphasise that these administrative proceedings are not an occasion for challenging on grounds of validity the mandatory cancellation decision of 29 April 2021. Any relief in respect thereof must be sought from the Federal Court. The task for the Tribunal is to determine the correct and preferable disposition of the applicant’s request to revoke the mandatory cancellation, based on information available[24] at the date of decision.[25] It is axiomatic that the law to be applied is that which prevails at the date of decision, not the date of the decision under review.
[24] Material provided by the applicant must have been given to the Minister at least two working days before the Tribunal hearing: see Migration Act, subsection 500(6J).
[25] Shi v Migration Agents Registration Authority [2008] HCA 31.
27.Subsection 501CA(4) provides:
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.
28.There is no residual discretion inherent in this formulation. If the conditions are satisfied, the original decision must be revoked.[26]
[26] Minister for Home Affairs v Buadromo [2018] FCAFC 151 “...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...”. See ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1633 per Rayment DP [15].
29.I turn to consider each of these questions in turn.
(a)Did the applicant make representations in accordance with the invitation?
(b)If so, is the Tribunal satisfied that he passes the character test?
(c)If not, is there another reason why the ‘original decision’ (being the decision not to revoke the cancellation of his visa made on 29 April 2021) should be revoked?
30.On 29 April 2021, the applicant made representations in accordance with the invitation.[27] His Personal Statement contains the following letter to the Minister:
[27] G21/69.
Dear Minister, I know you probably had or have a lot of people like me writing the same letter as me and hoping that you give me a chance or a second chance. I am not one of the smartest person on earth or the brightest but if you give me a second chance that would mean the world to me because I have grown up in this country all my life and all my families are all here and I know I’m not Australian citizen but I’ve lived here since I was 9 years old and now 21 and I have got a nearly 4 years old son living with his mum. I came here in 2009 from Samoa lived with my aunty and uncle, I completed my whole primary school at finished high school halfway in year 11. I had a couple jobs as an apprentice and looked after my son and family. I have no families in New Zealand or Samoa and no memories of the places, [be]cause all my families and my son and memories are all here in Australia. Both my parents passed in Samoa and they were all I had right up until I had my son … I never had my dad around so please let me stay and be here for my son thank you. Mr or Mrs Minister from your friend …[28]
[28] G21/70.
31.I am satisfied that the applicant made a representation at the invitation of the delegate for the revocation of the cancellation decision.
The character test
32.Paragraph 6(a) provides that a person does not pass the character test if they have a substantial criminal record. Paragraph 7 defines six circumstances under which a person does not pass the character test, two of which are relevant to these proceedings. Paragraph (7)(c) provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. Paragraph (7)(d) provides that a person has a substantial criminal record if they have been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.
33.In determining that the applicant had a substantial criminal record, the delegate referred exclusively to the 6 September sentence, and invoked paragraph (7)(c), on the basis that he had been sentenced to a term of imprisonment of 12 months or more.
34.In the present proceedings, the applicant did not dispute that he had been sentenced as an adult as follows:
(a)On 21 April 2020, he was sentenced in the District Court of Queensland to 11 months imprisonment for a number of offences committed between 19 and 22 November 2018.[29] He was released on probation on 21 April 2020.[30]
[29] See National Coordinated Criminal History Check: G6/28; G10/38, G11/44.
[30] The applicant had been in custody for a lengthy period - 17 months, of which 11 months related to this offending: G10/40.
(b)On 4 August 2020, he was sentenced to 10 months imprisonment in the Brisbane Magistrate’s Court for offences committed on 28 April 2020 (a week after being released on probation).[31]
[31] G13/48.
35.These convictions are apparent on the face of the applicant’s criminal record.[32] According to his record of convictions alone, he has a substantial criminal record by reason of paragraph (7)(d) of the Act. He therefore does not, as a matter of law, pass the character test, by reason of paragraph 6(a). Thornton does not detract from or prevent this finding.
[32] G6/28.
36.There is one potential hurdle to this line of reasoning. In CPJ16[33] the Federal Court held that the Tribunal should not expand the scope of review to take in grounds not considered by the delegate in making the original decision, where to do so would introduce an entirely different ground for consideration and prejudice the applicant in preparing for the hearing. In CPJ16 the delegate relied upon paragraph (6)(d)(i) – namely, that if she were allowed to enter or to remain in Australia, there was a risk that the applicant would engage in criminal conduct. The Federal Court held that it was not permissible for the Minister to rove at large over other criteria for failing the character test. Rares J stated (emphasis added):
[33] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 [58]-[61].
[60] It may have been arguable that other criteria in s 501(6) could have applied to her, including, it is safe to infer, as the Minister sought to agitate in the Tribunal, s 501(6)(c). However, the delegate had eliminated from the issues about which the applicant needed to satisfy him all criteria in the definition of the character test in s 501(6) other than s 501(6)(d)(i).
[61] Thus, I infer that only the question about which the delegate required the applicant to satisfy him was whether, under s 501(6)(d)(i), there was a risk, if she were allowed to remain in Australia, that she would engage in criminal conduct. The delegate gave reasons to support his conclusion that she had not satisfied him that there was no such risk and refused to grant the visa under s 501(1) on that ground. The applicant sought review of that decision, namely, that she should be refused a visa under s 501(1) because the delegate had found that she had not satisfied him that she passed the character test only on the basis that there was a risk that she would engage in criminal conduct in Australia were she allowed to enter or remain, within the meaning of s 501(6)(d)(i).
37.CPJ has been applied by this Tribunal,[34] although I note that on appeal the Full Federal Court expressed the view that the decision was not “self-evidently correct”.[35]
38.Where the original decision is based on paragraph (6)(d), the Tribunal is required to make a predictive judgment about the risk of some identified harm. In the absence of new facts emerging, it would be unfair to expect the applicant to meet a claim based on a different kind of risk, being raised for the first time at the hearing.[36]
39.The present case was not concerned with paragraph 6(d), but with paragraph (7). In applying paragraph (7)(d) rather than paragraph (7)(c), the criminal record speaks for itself. There is no predictive or normative judgment to be made, and no discernible prejudice to the applicant.
40.The applicant has received sentences of imprisonment as an adult which exceed a total of 12 months. He therefore has a substantial criminal record. In determining whether the applicant fails the character test, it is not necessary to consider his record as a juvenile, and the Tribunal has not done so.
41.I am therefore satisfied that the applicant does not pass the character test. Neither Thornton nor CPJ stand in the way of this finding.
‘Another reason’?
42.I turn to the third and vital question, namely, whether there ‘another reason’ why the original decision (being the delegate’s decision of 3 May 2022 not to revoke the cancellation of his visa done on 29 April 2021) should be revoked?
43.In exercising the discretion under subsection 501CA(4) of the Act, the Tribunal is bound by subsection 499(2A) to comply with Direction No. 90 (‘the Direction’) issued under section 499 of the Act.
44.Due to the shortness of time to prepare these reasons, I focus only on those parts of the Direction that are relevant to the applicant’s circumstances.
[34] For example, He and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 797 [46]; Pihere and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4236, at [33]; Anderson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 205.
[35] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2020] FCAFC 87, per Flick, Perry and Thawley JJ 28.
[36] Pihere and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4236 [33].

Part 1 of the Direction sets out certain formal matters and also, importantly, the principles that provide the framework within which decision-makers should approach their task.
Part 2 of the Direction provides guidance in relation to exercising the discretion.
Paragraph 8 relevantly refers to the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community as ‘primary’ considerations. Paragraph 9 identified certain ‘other’ considerations, including, relevantly, the extent of impediments if removed and links to the Australian community. According to the Direction, primary considerations should generally be given greater weight than the ‘other’ considerations.
The Direction also refers to family violence, Australia’s international non-refoulement obligations, and the impact on victims, as factors for consideration, but they do not arise for consideration in this case.
With regard to the last of these factors, the Tribunal notes that the 82 year old victim of the applicant’s conjoint action to deprive him of his motor vehicle was traumatised by the incident, but the Tribunal can take it no further than that.
Protection of the Australian community: PC1
Sub-paragraph 8.1.1 of the Direction outlines various factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date. The paragraph relevantly provides:
The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) …
b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)   …
(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) …
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)     with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)    the cumulative effect of repeated offending;
f)   …
g)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that an absence of a warning should not be considered to be in the non-citizen’s favour).
The applicant has engaged in crimes against elderly members of the community, namely a 61 year old woman, and an 82 year old man, both of whom were separated from their motor vehicles when they were threatened with violence by the applicant’s co-accused. This gave rise to two counts of armed robbery, which were dealt with summarily by the Southport Magistrates Court on 21 April 2020.[37] The behaviour was rightly described by the sentencing judge as ‘cowardly’. The judge also took into account as a relevant sentencing consideration that there was a prospect of deportation.[38] He was treated as a first-time offender and only eighteen at the time of offending. Taking his age and record into account and the lengthy period spent in custody, the judge sentenced him to 11 months imprisonment. He was sentenced to two years’ probation on the remaining seven offences, relating to unlawful vehicle use, burglary, attempted fraud, to enable him to be supervised in the community. It was a sentence intended to provide a pathway to rehabilitation.
[37] The indictments are at S44/344.
[38] G10/40. The Respondent does not rely upon this sentencing remark as a formal warning with regard to his immigration status.
Unfortunately, that was not to be, and a week later he was back in custody. This occurred around the time of his twentieth birthday, in April 2020. He was the passenger in a car taken for a joyride on the Gold Coast motorway.[39] This gave rise to a high speed car chase. The police used deflation devices to stop the car. The applicant ran away but was caught. He was charged on four counts: unlawful use of a motor vehicle, a stealing charge relating to the theft of petrol, a receiving charge relating to a watch found in his possession, and an obstruction charge relating to running away from the police.
[39] See Courier Mail, 29 April 2020, G27/120.
He was sentenced to ten months imprisonment for the unlawful use of motor vehicle charge, and one month for each of the remaining charges, to be served concurrently.[40] His parole eligibility date was set to the sentencing date, that is, 4 August 2020, and his full-time release date was 2 June 2021.[41] The magistrate held that the seriousness of his offending was aggravated by reason of coming so soon after being released to parole.[42]
[40] G13/49.
[41] G17/57.
[42] The applicant was on probation when the ‘car chase’ offending referred to above was committed, having been released on parole 21 April 2020 for earlier offending committed between 19 and 24 November 2018. On 29 April 2020, his parole was suspended and he was remanded indefinitely: S48/344. This suspension of parole was confirmed by the Parole Board on 1 May 2020: S50/349.
In terms of sub-paragraph 8.1.1, I find that the applicant’s conduct must be viewed very seriously by the Australian government and community.
There is no other relevant offending on the applicant’s adult criminal record and he has been in detention ever since.
In oral evidence to the Tribunal, the applicant expressed remorse for his offending. There are also various statements made for the purposes of this hearing which convey his feelings of remorse.[43]
[43] See for example, G26/117-8.
I note that during his time in prison and detention, he has been disciplined for various matters including an assault on a fellow inmate, and while these incidents are not to be lightly disposed of, I note that none gave rise to criminal charges.[44] I note that the applicant explains his occasionally non-responsive or even violent behaviour in terms of the trauma he experiences as a victim of sexual assault.[45]
[44] See various incidents referred – see S92/1133; Security Classification Assessment: S57/357.
[45] See MEM 43, at 63-67.
For the avoidance of doubt, for present purposes, I have not taken into account the applicant’s criminal history as a juvenile where no conviction was recorded, consistently with the Federal Court decision in Thornton.[46] My attention has not been drawn to any specific misconduct as a juvenile that is not precluded by the Thornton decision.
[46] Op cit.
Sub-paragraph 8.1.2 - The risk to the Australian community
I turn to consider paragraph 8.1.2 which directs the Tribunal to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
Over both clusters of offending, the applicant was complicit in the procurement and unlawful use of motor vehicles on a number of occasions. This is a very serious offence posing a high risk to members of the public, not only in acquiring the vehicle, but in its subsequent use. The nature of the harm relates to personal violence and the dishonest acquisition of property.
As to the likelihood of the applicant engaging in further criminal or other serious conduct, unfortunately, that cannot be considered to be low risk. Although there are some indices which indicate that he is at low risk of reoffending,[47] I consider that the risk is moderate to high. The Tribunal has received various Parole Board Reports, each of which found an unacceptable risk of reoffending. [48] I have reviewed those reports.
[47] See, for example, Integrated Offender Management System: Risk of Reoffending Assessment: S52/353. On a range of score from 1 to 22, where 22 indicates the highest risk, the applicant scored 3 (relating to his risk of re-offending conduct on 6 July 2020).
[48] Report dated 29 April 2020: S47/343, Report dated 17 September 2020: S57/383; Report dated 7 April 2021: S69/415, 417.
I also note the alacrity with which he resumed a criminal path in April 2022, despite the lengthy period of imprisonment he had just endured.
On the other hand, there are elements that mitigate the risk, including his experience of immigration detention and the realistic prospect of deportation to New Zealand, where he has no history and no familial relationships. Deportation means that he may lose for good the opportunity to pursue meaningful contact with his son and step-son, as well as his younger brother. He understands very clearly that as a non-citizen with a criminal record, the possibility of deportation will be ever present in his future life in Australia, and he must act responsibly to avoid this fate.
Finally, I note the suggestion that he has links with an Outlaw Motorcycle gang.[49] I attach no significance to this unproven claim which he responded to on 3 March 2022.[50]
[49] G5/20 [54]; G25/114..
[50] G26/115.
Overall, I find that the safety of the Australia community weighs strongly against revoking the cancellation decision.
I turn to the question of children. The Tribunal is required to consider whether cancellation of his visa is in the best interests of minor children affected by the decision. The applicant has a five year old son and a two year old step-son, the child of his current girlfriend.
With his own child, he has had no contact since he separated from the child’s mother when the child was two years old.
As to his step-son, he has had limited personal contact, given the newness of the relationship with the child’s mother.
The applicant states that he wishes to have more contact with his natural son, and intends to reach out to the child’s mother in an attempt to do so. He has not to date sought a parenting order in the Family Court.
His step-son has a caregiver (the child’s mother) and there is no evidence before the Tribunal that his natural son is neglected.
The Applicant’s solicitor has asked the Tribunal to weigh this consideration heavily in his favour.[51] The respondent’s counsel concedes that to the extent that it counts in his favour it should attract very limited weight.[52]
[51] ASFIC, 61.
[52] RSFIC, 59.
I accept that the applicant has a genuine desire to have a parental relationship with each of his children. I note that one of the few courses that he has completed in detention relates to positive parenting.[53] I attach little significance to the fact that he was unable to articulate the things he had learned about this course for the parole board,[54] or that he was unaware of the birthdays of these children. He wants to be a good parent, and is very aware of the emptiness that comes from absent parents.
[53] S57/377.
[54] S57/380.
The simple fact is that the applicant has had very limited contact with both of these children. This is not to say that in the future they will not become important relationships, provided that the relationships are nurtured and protected.
His parenting skills are completely untested. He has a traumatised past. He may be the victim of sexual abuse as a child. He has a history of drug use. He has had unstable relations with adults around him. He is distrusting and has occasional outbursts of anger and violence. There is some evidence of a tendency to self-harm when frustrated or angry.[55] For example, after a bad telephone conversation with his girlfriend in January this year, he picked up a guitar and smashed it over his head, destroying the guitar.[56] In July 2021 a phone conversation with his girlfriend ended with him head butting gym equipment.[57]
[55] See IHMS file note, 30 July 2021, ‘Volatile in his reactions with risk of self-harm when distressed’: S80/977.
[56] G23/87.
[57] S80/917; S80/988.
In terms of providing financial support, he has an undeveloped employment record, although I note the evidence that he has provided substantial financial support to the child’s mother.[58]
[58] MEM 5.
The Tribunal is not insensitive to the crucial importance of a father in the development of these young boys. It is not clear that his involvement with their care would be in their best interests. He is still a very young and troubled person. My somewhat tentative assessment is that greater maturity is required before he can take on the role of an active carer.
On the basis of the material before the Tribunal it is not possible to say that cancellation is in either child’s best interests. I therefore find that this consideration is neutral.
I turn to consider the expectations of the Australian community. As noted by Rayment DP in ZMBZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4185, at [21], in relation to the previous Direction 79:
As to the expectations of the Australian community, the Full Court of the Federal Court has construed cl 11.3 of Direction 79 by regarding the statements made about community expectations as statements of government policy not open to be departed from by a decision-maker, and the consideration in question will usually not favour an application, but its weight will be a matter for the decision-maker in all of the circumstances of the case.
This point is now made explicit in paragraph 8.4(4) of the current Direction. It must therefore be taken that it is not for the Tribunal to seek to identify the expectations of the Australian community, for these have been identified by the Australian Government and conveyed to the Tribunal in the Direction. I would go so far as to say that this consideration can never count in favour of the applicant, but it is a matter for the Tribunal as to how heavily it weighs against him or her.[59]
[59] FYBR v Minister for Home Affairs [2019] FCAFC 185.
Paragraph 8.4 provides (emphasis added):
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia).
(2) In addition, 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 is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) …
(b)…
(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;
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
It is perhaps worth remarking that the applicant appears to have taken a ‘back seat’ in the various offences involving joint criminal enterprise. In none was he the principle offender. He neither stole nor drove the cars unlawfully used in the offending, and his co-offender appears to have offered the threat of violence to those their intimidated. He was however complicit by his presence and sentenced on that basis.
Paragraph 5.2(4) of the Direction states:
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 noncitizens 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 noncitizens who have lived in the Australian community for most of their life, or from a very young age.(emphasis added)
To some extent the ‘norm’ referred to in paragraph 8.4(1) and the principle articulated in paragraph 5.2(4) pull in opposite directions. The applicant has lived in Australia for most of his life, and the principle of higher tolerance applies to him. I therefore find merely that this consideration weighs against revoking the mandatory cancellation, but its weight is significantly mitigated by the principle of higher tolerance, given his lengthy residence in the country.
I turn to consider the extent of impediments if removed. Paragraph 9.2(1) provides (emphasis added):
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.

The applicant is still a young person and his life experience has been tainted by alcohol, drugs and general waywardness. His health appears to be generally good.
He told an IHMS counsellor than in 2017 he tried suicide by hanging and was cut down by his girlfriend,[60] or ‘baby mumma’.[61] However, there does not appear to be any clinical diagnosis for a mental disorder or illness.
[60] G30/133.
[61] S80/917.
The applicant has consistently maintained that he is a sexual assault victim, having been raped in an institutional setting by a SERCO officer.[62] I note that he has retained a firm of solicitors, the purpose of their retainer being described in correspondence as a ‘personal injury compensation matter’.[63] I note his request as a 17 year old to be transferred from juvenile detention to an adult prison.[64] The Tribunal has made no assessment as to the veracity of his claim, but there can be little doubt that his own sense of victimhood dominates his self-perception and has adversely affected his psychological development.
[62] See Personal Statement dated 13 July 2022: MEM 39, para 44-50. He also made representations on 3 March 2022 regarding his sexual assault: G26/116, pp 3-4; See also G24/111 – regarding sexual assault claim. A file note refers to him being raped while in BYDC: S80/917. See file note, 30 April 2020, Integrated Management System SS71/480 (assessed as suitable for shared cell accommodation); A SERCO file note made on 2 June 2021 ‘states he has no history of sexual assault’: S95/1143.
[63] MEM 37.
[64] S40/323.
His family and social isolation is a matter of concern. There is no evidence that he has any family in New Zealand. He has never been to the country. The respondent argues that there are no cultural barriers to integration into New Zealand, on the basis that Australia and New Zealand are similar societies. I do not accept that proposition. I have discussed this issue in a previous case: see Corbett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 5087, where I said, at para 134:
[134]The complexities and subtleties of modern New Zealand society, its advancement as an inclusive multi-cultural society, its recognition as Maori as tangata whenua (people of the land – the original inhabitants) is foreign to him and would be foreign to many Australians. The applicant is not familiar with Maori traditions and culture (Maoritanga). In his statutory declaration, he said that his foster dad is a Kiwi, while his foster mum is a Maori.
Despite that, I only know only Australian culture. My family raised me in Australia and it’s all I know. We don’t practice Maori traditions at home. I don’t know the haka or national anthem. NZ culture is foreign to me.
[135]Australians are now very familiar with the plight of Aboriginal children removed from their parents, culture and traditions at a young age.[54] Persons removed as infants and returned as adults may experience social alienation and have no sense of ‘belonging’. Reassimilation is especially challenging for members of a particular ethnic group stripped of their culture. The applicant was removed from his Maori heritage when he was brought to Australia as a child. Were he to be returned to New Zealand, any tension may rise no higher than gentle teasing - about being an Australian in Maori skin. Anything more negative would almost certainly increase his sense of alienation.
The problem is greater in the present case. Samoans are a relatively small ethnic minority and have at various times suffered discrimination for which the Prime Minister of New Zealand has recently apologised.[65] Legislation has been passed to ensure that Samoans do not automatically acquire New Zealand citizenship, retrospectively negating a 1983 Privy Council decision to the opposition effect. Moreover, the applicant was removed from Samoa at the age of nine and has since lived in Australia. He has never been to New Zealand and knows nothing about its specific culture or complexities. He has no family contacts in that country. It is a mystery to the Tribunal as to why he has New Zealand citizenship, apart from the fact that he holds the sort of visa conferred upon New Zealand citizens, granted to him upon arrival in 2009. Neither the Respondent nor the applicant were able to cast any light on his citizenship status.
[65] Lenore Taylor, Jacinda Ardern apologises for New Zealand ‘dawn raids’ on Pasifika people in 1970s (2 August 2021) The Guardian <>
Overall, I consider that the impediments he would face upon return to his ‘home country’, the soil of which he has never stepped on, would be immense. This is a factor that weighs heavily in favour of revoking the cancellation decision.
I turn to his links with the Australian community. Under paragraph 9.4.1(1) the Tribunal is required to consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The Tribunal is also required to consider the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant has lived in Australia since the age of nine. The extent to which he was an ongoing relationship with his adoptive parents is unclear. He is certainly estranged from them now.
He has a close relationship with his younger brother, who is a New Zealand citizen and has an indefinite right to remain in Australia.[66]
[66] MEM 3.
The presence in this country of his only natural family members, his younger brother and his own son, constitute powerful reasons for setting aside the cancellation decision made on 3 May 2022.
He also has a prospective relationship with his girlfriend, who he describes as his fiancé. She did not give oral evidence to the Tribunal although she provided a statement.[67] She states that she is 23 years old and has known the applicant since he was 17. She has a two year old child to another man who was violent towards her and there is a domestic violence order in place. The applicant has provided evidence of her visitations to the detention centre. She says in her statement that she does not have records of all these visits due to technical difficulties. I also note evidence of payments made by the applicant to her.[68] It is not clear whether this is money to be spent on her or the child. She expresses the desire not to move to New Zealand.
[67] MEM 31-33.
[68] MEM 5.
I am disinclined to give much weight to this relationship which was not tested in cross examination. In any event, a somewhat hard-nosed assessment is that this relationship, which is entirely untested in the community, may well falter on the harsh winds of reality were he to be released. In any event, whether the prognosis for success is high or low, the relationship, such as it is, does add some weight to his community ties.
Overall, I find that this consideration weighs strongly in favour of revoking the mandatory cancellation decision.
FINDINGS ON THE DIRECTION
Considerations in favour of revoking the visa cancellation
·Impediment to resettlement (OC2) (heavily)
·Links to the Australian community (OC4.1) (strongly)
Considerations in favour of not revoking the visa cancellation:
·Safety of the community (against revocation) (PC1); (heavily)
·Expectations of the community (against revocation) (PC4) (moderately)
Considerations that are neutral, not relevant or of minimal weight
·Family violence (PC2)
·The best interests of minor children (PC3)
·Non-refoulement (OC1)
·Impact on victims (OC3) (lightly)
·Impact on Australian business interests (OC4.2).
CONSIDERATION
The Tribunal is unable to divorce its reflections about this case from the legal consequence of affirming the reviewable decision, that is, the removal of the applicant to a country he has never lived in. This is a key factor. The applicant is a young person who has lived in this country for most of his life (having been brought here without any say in the matter). He ought not to be removed (deported) to a country with which he has no cultural or familial affinity, and which he has never visited, absent the most egregious breach of the privileges associated with his temporary resident visa. One can imagine a case in which such a removal may be necessary for the protection of the Australian community, but it is not this case.
Regrettably, no person can give a guarantee that the applicant will not reoffend. He is still a young person and will have many challenges in life and many temptations. My overall assessment is that his experience in immigration detention, with the very real possibility of removal from this country being brought home to him, will provide some mitigation of the risk of future misconduct. This is a case where he should be given a second chance and the decision not to revoke the cancellation decision should be set aside.
DECISION
The decision of the delegate is set aside and substituted with a decision to revoke the cancellation of the applicant’s visa, with the consequence that his visa is not cancelled.

I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

....................................[sgd]....................................
Associate
Dated: 16 August 2022

Dates of hearing: 18 & 22 July 2022

Solicitors for the Applicant: Ms Jennifer Samuta, Samuta McComber Lawyers

Counsel for the Respondent: Mr Alexander Psaltis

Solicitors for the Respondent: Ms Abby Tinlin, MinterEllison

Dates of hearing:	18 & 22 July 2022
Solicitors for the Applicant:	Ms Jennifer Samuta, Samuta McComber Lawyers
Counsel for the Respondent:	Mr Alexander Psaltis
Solicitors for the Respondent:	Ms Abby Tinlin, MinterEllison