Main and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 45
•29 January 2025
Main and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 45 (29 January 2025)
Applicant:Robert Michael Main
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/9350
Tribunal:Deputy President O’Donovan
Place:Brisbane
Date:29 January 2025
Decision:The decision under review is set aside and substituted with a decision not to cancel the applicant’s visa.
Catchwords
MIGRATION – decision to cancel visa – character test – substantial criminal record – murder – armed robbery – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – extent of impediments if removed – citizen of United States of America – cancellation decision is set aside
Legislation
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(b), 501(2), 501(7), 501(6)(a)
Cases
Gray and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3363 (13 September 2024)
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Moana v Minister for Immigration and Border protection [2015] FCAFC 54
Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
The applicant was born in California in the United States of America (the US) in 1955.[1] When he was twelve, he moved with his family to Australia.[2] He never became an Australian citizen.
[1] G-Documents, p 365.
[2] Ibid, p 366.
After slipping into petty crime in his teenage years,[3] the applicant became a heroin and cocaine user.[4] In 1983 he killed a man during an armed robbery at drug dealer’s house. While remanded in custody the applicant was involved in the killing of another man by administration of a lethal dose of pure heroin.
[3] See for example, Ibid pp 43, 61.
[4] Exhibit A6, p 1. G-Documents, p 196.
As a result of these two incidents, the applicant was convicted of three offences:
· two convictions for murder; and
· one conviction for assault with intent to rob/use corporal violence (assault whilst armed and the attempted robbery).
He was given life sentences in relation to each of these offences.[5] Once his sentences were handed down, there was no expectation that the applicant would ever be released into the community.
[5] G-Documents, pp 42, 62.
However, following changes in sentencing laws in NSW, the applicant was able to have his sentences re-determined. When the applicant first began applying in the late 1990s his applications were unsuccessful,[6] but in 2008, his applications were successful. In relation to the first murder conviction his sentence was set at 26 years – concluding on 28 June 2009. In relation to the assault whilst armed conviction, he was given a sentence of 25 years and two months – concluding on 4 July 2008. In relation to the second murder conviction, his sentence was not re-determined but he was given a non-parole period of 25 years. The non-parole period finished on 27 May 2012.[7]
[6] Ibid, pp 87, 150, 171.
[7] Ibid, pp 71, 97, 100.
On 17 June 2016, the applicant was released into the community on parole.[8]
[8] Ibid, p 360.
For a period of almost 4 years the applicant lived in the community, caring for his brother Fletcher who at the time was suffering from a terminal illness.[9] On 25 February 2020, the then Minister cancelled the applicant’s visa after the applicant failed to respond to a Notice of Intention to Consider Cancellation.[10]
[9] Exhibit A1 at [4]-[6].
[10] G-Documents, p 49.
Despite the visa cancellation, the applicant was not taken into immigration detention until 4 May 2022.[11] On 11 May 2022, the Federal Court quashed the visa cancellation decision and the applicant was released into the community again.[12]
[11] Ibid.
[12] Ibid, p58.
On 14 November 2023, the applicant was given a Notice of Intention to Consider Cancellation. On 3 September 2024, a decision was made by a delegate to cancel the applicant’s visa. On 6 November 2024, the applicant was notified of the cancellation decision and was again taken into immigration detention. [13]
[13] Ibid, p 15; Exhibit A6, p 2.
On 14 November 2024 the applicant applied for review in the Administrative Review Tribunal.
The Applicant’s visa was cancelled under section 501(2) of the Migration Act 1958 (Cth) (Migration Act). The decision was in the following terms:
I reasonably suspect that Mr Robert Michael MAIN does not pass the character test and Mr Main has not satisfied me that he passes the character test. I have decided to exercise my discretion under s501(2) of the Act to cancel Mr MAIN’s visa. I hereby cancel Mr MAINs Class BF Transitional (Permanent) visa.[14]
[14] G-Documents, p 19.
The applicant concedes that he does not pass the character test.[15] The only question in issue is whether I should exercise the discretion available in s 501(2) and decide not to cancel the applicant’s visa.
[15] The applicant conceded this in closing oral submissions.
In considering that discretion, the Tribunal must have regard to the matters contained in a ministerial direction issued under section 499(1) of the Migration Act. The relevant direction is Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, which was executed on 7 June 2024 and commenced on 21 June 2024 (the Direction). Informed by the principles identified in the Direction, I must take into account the considerations identified in sections 8 and 9 when I am exercising the discretion in s 501(2).
The discussion below of the principles and considerations I must take into account under the Direction are drawn largely from one of my earlier decisions concerning a discretion conferred by section 501 of the Migration Act, which has been revised to appropriately reflect the circumstances of this case.[16]
[16] Gray and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3363 (13 September 2024).
The Direction is divided into ‘primary’ and ‘other’ considerations. In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.[17] The protection of the Australian community consideration should generally be given greater weight than other primary considerations and primary considerations should generally be given greater weight than ‘other’ considerations.[18] There is however scope to weight ‘other’ considerations more highly in appropriate circumstances,[19] and similar flexibility is available in the relative weighting of primary considerations.[20]
[17] The Direction, paragraph 7(1).
[18] Ibid, paragraph 7(2).
[19] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
[20] The use of the qualifier ‘generally’ carries that connotation.
The primary considerations are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations are:
(a)the legal consequences of the decision;
(b)the extent of impediments to the Applicant establishing and maintaining basic living standards if removed from Australia; and
(c)the impact on Australian business interests.
I am also required give consideration to any other considerations raised by the applicant.
The principles set out in paragraph 5.2 of the Direction make it clear that the safety of the Australian Community is the highest priority of the Australian Government. Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia. The Australian community expects that the Australian Government can and should cancel non-citizen’s visas if they engaged in conduct, in Australia that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. With respect to a decision to cancel a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling a visa. The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling the visa, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Having considered each of the considerations and weighed them appropriately, I have decided that the decision under review should be set aside and no decision made to cancel the applicant’s visa.
My reasons for that decision are set out below.
Evidence before the Tribunal
The material in the following schedule was taken into evidence:
Exhibit
Description
G-Documents
Section 501 ‘G’ Documents, G1 to G4, pages 1 to 493
A1
Affidavit of Mr Robert Michael Main dated 8 September 2022
A2
Affidavit of Susan Catherine Rafati dated 8 September 2022
A3
Statement by way of email from Sue Rafati dated 5 January 2025
A4
Letter from Simon Lewinson dated 8 January 2025
A5
Email from Jo Hanson dated 19 December 2024
A6
Excerpt of Summons Material from IHMS lodged by the applicant on 10 January 2025 (25 pages)
A7
Excerpt of Summons Material from Tweed Valley Hospital lodged by the applicant on 10 January 2025 (27 pages)
R1
Letter of Instruction to Dr Timothy Watson-Munro dated 24 November 2023, located at pages 519 to 534 of the Joint Summons Tender Bundle
R2
IHMS General health Summary, located at pages 53 to 57 of the Joint Summons Tender Bundle
R3
IHMS Progress notes dated 6 November 2024, located at page 73 of the Joint Summons Tender Bundle
R4
Letter from Ricky Harjanto dated 6 May 2022, located at page 192 of the Joint Summons Tender Bundle
R5
Document dated 27 May 2016 produced by the NSW State Parole Authority consisting of the applicant’s parole conditions, located at pages 235 to 237 of the Joint Summons Tender Bundle.
R6
Affidavit of Mr Alasdair Colin Dougall dated 24 November 2022
MFI1
Joint Summons Tender Bundle (SD1 to SD6, pages 1 to 743)
The following witnesses gave oral evidence for the applicant:
· the applicant, Mr Robert Michael Main;
· Ms Susan Catherine Rafati;
· Ms Jo Hanson; and
· Mr Simon Lewinson.
The Respondent cross examined the applicant and Mr Lewinson but declined to cross-examine Ms Rafati and Ms Hanson.
Fact finding principles
In reaching my findings on the primary facts I must apply the principle, clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection (HZCP),[21] that '…relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error'. The Court made clear that a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked.[22]
[21] [2019] FCAFC 202 at [68].
[22] These passages are drawn from my earlier decision in Gray but have been reviewed for applicability to the current decision.
I do note however that the Applicant is entitled, subject to some qualifications, to seek different findings from the Tribunal in relation to any criminal convictions which did not form the basis of the decision to cancel his visa. The principles to be applied by the Tribunal when considering evidence of this nature were comprehensively summarised by Justice Bromberg in HZCP. The principles are stated concisely in the following passage from Secretary to the Department of Justice and Regulation v LLG, cited with approval by Justice Bromberg:
The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal's jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.[23]
[23] [2018] VSCA 155, at [42].
In this matter, I am therefore bound by the essential findings made in relation to what I will call the three primary offences. The applicant received a life sentence in relation to each primary conviction and each independently provides a basis for his failure of the character test. Accordingly, each conviction provides the foundation for the visa cancellation. In relation to the Applicant’s other convictions, I do have some freedom to depart from the findings made in relation to the other crimes which the applicant has been convicted of, but it would be unusual to do so.
Facts
My findings of fact are set out below. Where a finding is controversial, I have referenced the evidence on which the finding is based.
As noted above, the applicant was born in the US in California in 1955. The description of his childhood ranges from ‘good’ to ‘unstable’[24]. However it is described, it was on any view a challenging childhood. The applicant’s biological father died of a heroin overdose when the applicant was very young. His mother was an alcoholic. He was removed from his mother’s care (perhaps as a result of his mother being sent to prison) and put into state care for a period of three years. At age six he was returned to his mother’s care. At that point she was married to his step-father, Jack Main. The applicant adopted his step-father’s surname. His step-father could be abusive when affected by alcohol.[25]
[24] G-Documents, p 168.
[25] Ibid, pp 168-169.
In 1967, when the applicant was 12, the family relocated to Australia. At that stage his family consisted of his mother, his step-father, his brother ‘Fletcher’, his brother ‘Fred‘ and his sister ‘Patty’. He has remained in Australia ever since.
The applicant left home at 14 due to physical abuse from his step-father. He commenced drug use almost immediately and was a heroin user by age 15. He did, however, work in paid employment but also dealt drugs to support himself and his habit.[26]
[26] Ibid, p 169.
In 1973, the applicant’s only child Mark was born. The applicant and Mark’s mother remained together until the late 1970’s.[27]
[27] Ibid.
His adult offending commenced in 1975 with a conviction for driving with a prescribed concentration of alcohol. In 1979 he was convicted of public mischief and driving offences including negligent driving and failing to stop. From 1980 he was charged and convicted on multiple occasions as a result of drug possession and supply activities. In 1982 the applicant was convicted of armed robbery and in a later incident of possessing an unlicensed pistol, carrying a cutting weapon and resisting arrest (among other matters).[28]
[28] G-Documents, pp 42-43.
Despite being sentenced to four years hard labour in relation to the armed robbery, in early 1983 he was free in the community and working as a driver for a funeral home and doing some work as an embalmer. He was living in Randwick in a unit with his siblings. Here he met his current partner, Susan Rafati. They began a romantic relationship in early 1983. The applicant continued to use heroin in this period despite Susan’s disapproval and also engaged in activities to fund his addiction.[29]
[29] Ibid, pp 371 to 372.
On 17 June 1983, the applicant and an accomplice decided to rob a drug dealer who was living on the northern beaches. When they attended the drug dealer’s house the applicant was wearing a balaclava and was in possession of a loaded pistol. The events which unfolded are described in the resentencing remarks published in 1999 as follows:
At approximately midnight on 17 June 1983, the applicant, who was armed with a loaded .357 calibre revolver and accompanied by another man, both disguised with balaclavas, arrive at [the drug dealer’s] house at Whale Beach planning to rob him of drugs, of which he was a supplier. Present at the house as a guest was the deceased Mitchell who struggled with the applicant and was fatally wounded when the loaded revolver was discharged during the struggle. The applicant told the police that he realised that a man was dead, but said “I only went there to rob them not hurt them, that’s the truth”.[30]
[30] G-Documents, p 89.
The applicant was arrested and charged with the murder of Mr Mitchell. He was remanded in custody at Malabar Metropolitan Remand Centre which was part of Longbay Gaol. While on remand, the applicant was involved in the death of fellow inmate Anthony Cameron. The circumstances were described by the judge considering the re-determination of the sentence in 1999 as follows:
Cameron was killed by either inhaling or having had injected pure heroin. This murder was committed by the applicant on a promise of payment of a large quantity of heroin by another prisoner, then facing serious drug charges, who thought that Cameron, jointly charged with him, might give evidence against him. It was a contract killing. To my mind, the characterisation by Allen J of this crime [as a cold, calculated, deceitful assassination] is entirely justified.[31]
[31] Ibid.
The applicant was given three life sentences in relation to the robbery/assault and the two murders. Those sentences were handed down on 11 March 1985 in relation to the first two crimes, and on 28 May 1987 in relation to the third crime.[32]
[32] G-Documents, pp 42, 62.
At that point he had no expectation of ever being released.
The applicant’s relationship with Ms Rafati continued for a period while he was in jail, but in 1989 she broke off the relationship and moved on with her life.[33]
[33] Exhibit A2 at [3].
In the 1990s, statutory reform of sentencing in NSW known as ‘truth in sentencing’ provided for applications to be made to re-determine sentences. The applicant sought to take advantage of the changes and made multiple applications to have his life sentences changed so that he could ultimately be released.
When his application was heard in 1999, the presiding judge noted the assessment of a psychiatrist who assessed the applicant in 1995. The psychiatrist described him in the following terms:
The overall evaluation of this man in terms of both the interview and the testing is that he remains a very self confident highly active manipulative person who operates as much as possible in terms of being a law unto himself. He clearly continues to have the considerable distortion of personality that was the basis of his criminality and drug addiction before his incarceration on these offences. I note that there is a history of negative attitudes toward this man on the part of the jail authorities although these have not always resulted in charges or in proven evidence. While such behaviour in prison could of course be his means of surviving in custody, it is nevertheless likely to predict continuation of the self centered, impulsive, hyperactive approach that was associated with him getting into trouble in the past and his use of heroin.
In relation to the second murder the applicant committed, the judge noted that ‘it was a cold blooded, pre-planned murder for reward….The applicant has shown no remorse’.[34]
[34] G-Documents, p 94.
As time passed in prison it seems that the applicant’s behaviour and attitude improved.
When the applicant applied again for a redetermination of his life sentence in 2008 the reports in relation to his attitude and behaviour were significantly different. The reports from the Serious Offender’s Review Council ‘detected a significant improvement in the applicant’s attitude and conduct and, on 19 June 2001 recommended his classification be reduced.’ Apart from a screening test detecting a non-prescribed drug on 23 September 2000, the applicant was described as ‘stable on methadone and there was no sign of any significant relapse’.[35]
[35] G-documents, p 77.
The judge also noted that the applicant suffered from an acute psychotic episode of significant severity. He was transferred to the Metropolitan Medical Transient Centre where he stayed until 14 August 2004. The applicant was noted to have been taking anti-psychotic medication after that which was effective.[36]
[36] Ibid.
The psychologist report tendered in the application for resentencing noted:
[The applicant’s] propensity for violence as a means of having his needs met remains a relatively untested risk factor outside of the gaol environment, but would appear to be moderated by his present stability and compliance…he has been better able to control impulsive tendencies associated with drug use, and has maintained favourable urinalysis results.[37]
[37] Ibid, p 79.
Reports tendered by psychiatrists described the way the applicant talked about his past crimes and noted:
[in relation to the first murder] For a long time he preferred to think of the shooting as an accident, he did not go to the premises to kill anyone but he had taken a loaded gun. Having done this was murder and he was ‘not proud for sure’. He remarked that there was ‘not much I can do in my position, just hope people just forgive you. I am the bad guy, I know that. For a long time I thought I was the victim, I wasn’t’.[38]
[38] Ibid, p 80.
The applicant’s insight in relation to the second murder as revealed in the psychiatrist’s reports in 2008 was less impressive. The applicant was only prepared to concede that he was present when Cameron died and that he felt responsible for not raising the alarm when Mr Cameron was in difficulty. He did not admit that he had supplied a lethal concentration of heroin in order to earn a large amount of heroin.[39]
[39] Ibid, p 81.
He did however comment:
I was so arrogant to think I could get away with all of that shit. It’s easy to be a fuck up. You don’t need brains to do something stupid, just to say, “I did that”. [In relation to young men he sees in prison he thinks] ‘Was I that ridiculous’.[40]
[40] Ibid, p 80.
The same psychiatrist observed:
I thought him considerably changed as he was no longer as talkative and outgoing and there was no hint that he was uninhibited as previously noted. In 1998 I thought his presentation was consistent with a personality disorder but that was not the case recently…He spoke about his offences in a straightforward fashion and I though his remorse was genuine…
I note in particular a report by Senior Custodial Officer D McLachlan dated 1 November 2000 that he had known Mr Main for twenty years and found him a completely different inmate than when they first met. Mr Main’s self report of improvement in attitude and behaviour and his presentation at interview convinced me he has changed significantly for the better…
I think the evidence suggests that Mr Main is now at much less risk of re-offending and, based on the psychological assessment and my knowledge of him, I believe risk of serious re-offending is probably low. It is essential that he does not return to drug use at any time and that if released receives support while under supervision, has good contact with his family, and continues on methadone and whatever other medication is considered necessary.
The judge noted:
…it appears that the applicant has been free of illicit drug use for a considerable time, as evidenced by the fact that he has only returned a positive sample to a non-prescribed drug on one occasion since 1999…despite frequent random urine analysis tests. Further medical evidence establishes…that in respect of the applicant his maintaining a stable dose of methadone is an important aspect of his rehabilitation and should not be regarded as a negative feature.[41]
[41] Ibid, p 82.
Following careful consideration, the judge redetermined the applicant’s three sentences. He reduced the sentence for the armed robbery offence to twenty-five years and two months, the sentence for the first murder to twenty-six years and in relation to the second murder, left in place the life sentence but set a non-parole period end date of 27 May 2012.
Despite an appeal by the Director of Public Prosecutions, the Court of Appeal did not alter those sentences.[42]
[42] Ibid, p 59.
The applicant remained in prison until 17 June 2016. While in prison he remained on methadone.[43]
[43] Ibid, p 442.
In 2015, his brother Fletcher tracked down Ms Rafati and communication between Ms Rafati and the applicant resumed.[44]
[44] Exhibit A2 at [4].
When the applicant was granted parole, both she and Fletcher were outside the prison to meet him.[45]
[45] Ibid at [13].
When he was released, his parole conditions included that he must totally abstain from alcohol and must not use or be in possession of a prohibited drug or substance, except those that have been prescribed, and must undertake testing when directed to do so. Other normal parole conditions, including an obligation to be of good behaviour and report to a parole officer as directed were also imposed.[46]
[46] Exhibit R5, p 237.
When the applicant was released, he moved in with his brother Fletcher in Sydney. Ms Rafati at the time lived in Queensland. They remained in touch but did not live together.[47]
[47] Exhibit A2 at [17]-[18].
Fletcher was suffering from obstructive pulmonary disease as a result of being a lifetime smoker. He was given a poor prognosis and required significant care. The applicant provided that care.[48]
[48] Ibid, at [19]-[22].
While free in the community the applicant remained on medication to control his opiate addiction. Initially the medication used was methadone, which needed to be taken daily, but around early 2022 the applicant switched to monthly Buvidal (buprenorphine) injections.[49] He was also prescribed and took daily medication which controlled his schizophrenia.
[49] G-Documents, pp 176, 442.
The applicant remained free in the community for almost six years. He was compliant with his parole conditions. During this period, he also connected with his grandson ‘M’. His initial contact with M was through the applicant’s own son Mark, but in 2017 M was removed from the care of his biological parents and placed in foster care.[50] M’s foster carers met up with the applicant following a supervised visit arranged by the applicant, and from that point he was incorporated into his grandson’s life through regular visits. M’s foster mum was glowing in her assessment of the applicant’s influence on his grandson and his commitment to having a relationship with him.
[50] Ibid, p 385. Exhibit A5.
On 25 February 2020, the Minister cancelled the applicant’s visa after the applicant failed to respond to a Notice of Intention to Consider Cancellation and other correspondence. Despite the visa cancellation and the fact that the Department knew where the applicant lived, no steps were taken to move him to immigration detention. From the applicant’s perspective, the only tangible change he was aware of as a result of his visa cancellation was that his Centrelink benefits were cut off.[51]
[51] Exhibit A1 at [7].
More than two years after the applicant’s visa was cancelled the Department decided to take him into custody at Villawood. Just over a month after the applicant was taken into immigration detention, Fletcher died. When the applicant first entered Villawood, he lost access to his schizophrenia medication and began to hear voices coming from the television. Access to medication was restored after a few weeks and the symptoms receded. The applicant remained having regular Buvidal injections to control his opiate addiction. [52]
[52] Ibid at [18] to [20].
The applicant remained in immigration detention for almost a year. In that time, he never failed a drug test and was not involved in any disciplinary matters. His behaviour appears to have been exemplary.
He was released into the community again on 11 May 2023, after the Federal Court quashed the earlier visa cancellation decision on the grounds of illogicality.
As the applicant’s brother was dead, he made arrangements with Ms Rafati to move in with her. She had by this point in time moved to a retirement village in Tweed Heads NSW. When living with the applicant it became clear to Ms Rafati that the applicant was significantly mentally impaired as compared to the man she knew when the applicant was young. He required significant amounts of support to negotiate some of the more complex aspects of daily living.[53] He maintained contact with his grandson during this period. He set up a regular Saturday morning catch-up with him on Facetime and would visit him regularly. These visits required long trips on buses from Tweed Heads to Sydney. While in Sydney the applicant would visit and stay with other friends.[54]
[53] G-Documents, pp 389-392.
[54] Ibid, pp 385-386; Exhibit A5.
The applicant also met a friend of Ms Rafati, a Mr Lewinson. Mr Lewinson spoke with the applicant on the phone and met him on two occasions when he travelled from Victoria to Tweed Heads to visit Ms Rafati. He described the applicant as ‘quiet, gentle and affable who was always ready to help’. He personally observed the applicant helping his neighbours when he arrived unannounced, and he described the care which the applicant provided to Ms Rafati following a serious fall which she had which resulted in the need for a shoulder reconstruction and rehabilitation on a cracked patella.[55]
[55] Exhibit A4.
On 14 November 2023, a delegate of the Minister provided the applicant with a Notice of Intention to Consider Cancellation of his visa. On 3 September 2024, the delegate made the cancellation decision which is the subject of this review. The applicant was notified of the cancellation decision and was taken to detention in Brisbane on 6 November 2024 (some 2 months after the decision was made).[56] He applied to the Tribunal for for a review of that decision on 14 November 2024.
[56] Exhibit A6, p 1.
Psychological Report
In the context of the notice of intention to consider cancellation, the applicant sought and obtained a report from psychologist Dr Watson-Munro dated 13 March 2024. That report confirms that the applicant suffers from mild depression.
He noted that the applicant’s parole officer states:
…Mr Main has remained engaged with [Community Corrections]…Overall, Mr Main’s response to supervision has been satisfactory and he has been compliant with all aspects of supervision and his parole obligations.[57]
[57] G-Documents, p 181.
He noted that the applicant had successfully completed the Violent Offenders Therapeutic Program (VOTP) in 2011.
He also noted that the applicant suffered a serious head injury at some point but that the applicant was unable to pin down the precise date the event occurred.[58]
[58] Ibid, p 183.
He noted that ‘…it would appear that Mr Main’s criminal offending and criminogenic thinking are now in remission. He is no longer addicted to drugs and appears to be leading a comparatively stable, law abiding life in Northern New South Wales’. He noted that the applicant’s cognition is impaired. He noted that the applicant has some insight into his past offending and expressed appropriate remorse.[59]
[59] Ibid, p 184.
He also commented on the effect of any return on the applicant to the US in the following terms:
Mr Main will inevitably suffer psychological and physical hardship should he be returned to the United States. He has not lived there since he left with his mother in 1967. He identifies as Australian and as reflected in the material, he is well supported in terms of his rehabilitation and treatment by the Australian community. It would appear that this type of treatment would not be available to him in the United States. Inevitably, he would be homeless and there will be a significant escalation in his psychiatric illness. I note in particular that he is well maintained by anti-psychotic medication administered by way of depot injection. Equally so, it is unlikely that he will receive treatment for his past opiate dependence. If this type of treatment falls away in a land in which he has no familiarity, it is questionable as to whether he would survive. He may well drift back into a pattern of drug dependence as a means of self-medication and in addition, there may be a recrudescence of his symptoms of a psychotic illness.[60]
[60] Ibid, p 185.
He noted that Mr Main’s risk of reoffending if allowed to remain in the Australian community was ‘trending from Moderate to Low’.[61] He noted that there were protective factors (including his relationship with Ms Rafati) which reduced his risk of reoffending and that the applicant was now at an age where he lacks the motivation or resources to become reinvolved with crime.
CONSIDERATION
Primary considerations
[61] Ibid.
Protection of the Australian Community
When examining this consideration, I am required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are and have been law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
I need also to give specific consideration to:
· the nature and seriousness of the applicant’s conduct to date; and
· the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
In considering the nature and seriousness of the conduct there are factors to which I must have regard specified in paragraphs 8.1.1(1)(a)-(h).
When these factors are applied to the applicant’s circumstances, the result is that I must approach the applicant’s case on the basis that his crimes are viewed very seriously by the Australian Government and the Australian Community. His crimes[62] include violent crimes. Particular attention needs to be paid to the second murder in considering the seriousness of the applicant’s crimes. The second murder can be characterised as a heinous, deliberate killing of a person for personal gain and for the purpose of ensuring that the person would not give evidence against the person providing the applicant with a benefit. The respondent quite rightly emphasises the seriousness of this offence. He contends that the second murder in particular is so serious that regardless of what weight is given to other factors in the analysis, the applicant’s crimes are of such a nature that whatever examination of the other factors may yield, the seriousness of the crime will outweigh those matters and the proper exercise of the discretion in this case is to cancel the applicant’s visa.
[62] Which are listed in the respondent’s statement of facts issues and contentions at [26] and all of which I have considered.
I agree with the characterisation of the second murder and that it weighs heavily against the applicant. However, I do not accept that, in this case, it in effect dictates the result regardless of my consideration of what the remainder of the analysis yields. The applicant’s violent crimes are very serious – among the most serious imaginable – and should be weighed accordingly.
The applicant has also committed crimes which should be classified as serious. He has been convicted of resisting arrest and so is guilty of crimes against government officials in the performance of their duties (factor (b)).
The applicant has had the longest custodial sentences available imposed on him. On three occasions he was given life sentences. When the sentences were reconsidered on multiple occasions, the life sentence imposed for the second murder was never varied. This indicates the seriousness with which the courts regard the offending. The applicant’s offending is at the very top end on the scale of seriousness (factor (c)).
Two of the victims of the applicant’s crimes are dead and there is no more significant impact than that. There is material available about the impact on relatives of the deceased. That evidence establishes that the crimes were emotionally devastating for those who witnessed the crimes and/or were related to the victims.[63] (factor (d)).
[63] G-Documents, p 82.
There is however no increasing frequency of the applicant’s offending or any trend of increasing seriousness. The applicant’s violent and criminal conduct peaked in 1983 when he committed two murders. For the next 15 years his absence of criminal offending can largely be explained by his incarceration and close supervision in the criminal justice system. However, there appears to have been a change in the applicant’s attitude and behaviour in the early 2000s. His lack of offending since then can not be attributed just to his incarceration. The applicant has committed no crimes since his release into the community in 2016. The frequency of his criminal offending has declined to zero , in circumstances where he has been free in the community for extended periods since 2016. The applicant’s crimes increased in seriousness from the time he became an adult in 1973 until he committed the second murder in 1983. There has been no increase in the seriousness of offending since then. What has been seen since then has been a very significant improvement in attitude and behaviour (factor (e)).
The cumulative effect of repeated offending has been devastating:
· Two men are dead,
· at least one witness to the first murder terribly traumatised,
· victims of other armed robberies are likely to have been adversely affected, and
· relatives of the victim of the second murder are still grieving (factor (f)).
The applicant has never provided false or misleading information to the Department. (factor (g)).
The applicant has never offended since being formally warned or being made aware that his offending may affect his visa status (factor (h)).
The applicant has never committed an offence in another country.
Considering all these factors, the nature and seriousness of the conduct is at the most serious end of the spectrum. The only factor which softens the assessment in any way is that it occurred a long time ago and has not been repeated despite release into the community.
The risk should the non-citizen commit further offences
In considering the need to protect the Australian community I must 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. The applicant’s criminality is conduct of that kind. To release a non-citizen into the community where a possible outcome is that the applicant will kill someone is not consistent with the approach that the Direction requires me to take.
In assessing the risk to the community, I have had regard to the factors identified in paragraph 8.1.2(2) of the Direction. I must have regard to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct and the likelihood of the non-citizen engaging in further criminal conduct taking into account of the applicant’s risk of reoffending and evidence of rehabilitation achieved by the time of the decision giving weight to time spent in the community since the most recent offence. My analysis is as follows.
Nature of the harm from further criminal conduct
The harm to others should the applicant engage in further conduct of a criminal or serious nature includes death or maiming as a result of the use of weapons or the deliberate misuse of drugs.
Likelihood of further criminal conduct
I am satisfied that the risk of the applicant engaging in further criminal or serious conduct should be assessed as extremely small.
I note that a trained psychologist assessed the applicant in 2024 as having a risk of medium trending to low risk of re-offending. That is a professional opinion which is worthy of serious consideration. However, on the facts of this case, I regard it as unduly pessimistic.
The applicant was assessed by a psychiatrist, Dr Lucas, in 2008 as part of the sentence re-determination process. Dr Lucas concluded in relation to the applicant:
I think the evidence suggests that Mr Main is now at much less risk of re-offending and, based on the psychological assessment and my knowledge of him, I believe risk of serious re-offending is probably low. It is essential that he does not return to drug use at any time and that if released receives support while under supervision, has good contact with his family, and continues on methadone and whatever other medication is considered necessary.[64]
[64] G-Documents, p 81.
That assessment was appropriate based on the information that was available in 2008. Since that assessment was made the applicant has spent many years in custody without incident and many years in the community without incident.
In one sense this is not surprising. The violent crimes for which the applicant was given three life sentences were all motivated by drugs. In the case of the first murder and robbery he was pursuing drugs and cash to support his heroin habit. In relation to the second murder, he was promised a significant quantity of heroin in exchange for murdering Mr Cameron.
In no sense does the background of drug addiction in any way ameliorate the seriousness of the crimes. However, in circumstances where the applicant is now medicated in a way that controls his appetite for opioids, and it was that very appetite that led directly to the murders and robberies he committed, the risk of a repeat of that behaviour falls to a very low level particularly when the applicant’s age is also considered.
Given my assessment of the risk depends upon the applicant continuing treatment for his addiction, then I must also be confident that the treatment will continue and continue to be effective. I am satisfied of both. The applicant has been using heroin substitutes for more than two decades. There has not been any unauthorised use of opioids detected for decades. The applicant knows that it is a condition of his parole that he not use illicit substances. If he were to do so and the use was detected, he would return to prison for the rest of his life. The applicant’s current regime is very straightforward. He has one Buvidal injection every month. Ms Rafati assists him to remain compliant. Even in the absence of her direct assistance, the applicant has proven his capacity to remain compliant. When he was taken into Villawood detention centre, he was able to organise a resumption of his medication with the relevant authorities. He has moved from Sydney to Tweed Heads and all of the indications are that he has been able to put in place arrangements to ensure that the injections continue. The medication is clearly effective.
When it is considered that:
· he is highly motivated to continue the treatment;
· his parole supervision supports compliance; and
· Ms Rafati provides support to ensure that the applicant remains compliant;
I am satisfied that the applicant will continue to use Buvidal consistently and his need for opioids will be controlled.
In these circumstances I am satisfied that the risk of the applicant re-offending is very small. The conditions which prompted his criminality are being appropriately managed and he has demonstrated for an extended period that he has no interest in or desire to return to drugs or crime.
Even with the assessment that the applicant’s risk of re-offending is very small, the seriousness of the applicant’s crimes mean that this consideration weighs heavily against the applicant having his visa restored to him. It does however mean that the consideration does not have determinative weight in assessing the appropriate exercise of the discretion.
Family violence committed by the non-citizen
This consideration is neutral as the applicant has never been involved in a family violence incident.
Strength, Nature and Duration of Ties to Australia
This consideration weighs strongly in favour of revoking the visa cancellation.
The applicant has a grandson who he is close to. I will discuss that relationship in more detail when I consider the best interests of minor children in Australia.
Despite the fact that the applicant did not come to Australia until he was twelve and he was in custody from the age of 28 until he was 61, the applicant has strong ties to Australia.
His whole family (as it was at the time) emigrated to Australia in 1967. On arrival he had a mother, a step-father, two half brothers and a half sister. Only his half sister is still alive, but he has little contact with her. The applicant was close to his brother Fletcher prior to his incarceration and became Fletcher’s carer upon his release. Both of the applicant’s brothers are now dead.
The applicant did part of his schooling in Australia and worked in the funeral industry for a number of years.
He had a girlfriend for many years and they had a son together. The applicant does not appear to have contact with his son’s mother any more, but he does have some contact with his son. It appears that the reason there is not more contact is that his son is a heavy user of heroin and cannabis.
He has an important relationship with Ms Rafati, who he now lives with. He has known her since 1983 and despite the applicant’s incarceration they conducted a romantic relationship until 1989. She is clearly an important support to him and since her shoulder and knee injury, he is an important support to her.
The applicant lives with Ms Rafati in Tweed Heads and by all accounts the applicant has friendly relations with others in the retirement community where they live. The applicant has friends who he visits when he is in Sydney.
I have had regard to the following matters:
· the applicant arrived in Australia as a boy and has resided here for 57 years;
· I have only had regard to his adult offending which began 8 years after his arrival in Australia;
· prior to his incarceration the applicant contributed positively to Australia in the limited sense that he worked in the funeral industry for many years. However, it needs to be recognised that he was a drug user and seller from his mid-teens and during his time in the funeral industry;
· after his release from prison in 2016 the applicant has contributed to the Australian community. His care for his brother Fletcher during the period of his terminal illness was an admirable contribution to his brother’s life; and
· the applicant does not have a close relationship with either his surviving half-sister or his son. The closest relationship he has to a family member at present is with his grandson.
The applicant has few but important relationships in Australia and lacks ties of any description in the US. This consideration weighs strongly in favour of not cancelling the applicant’s visa.
Best interests of minor children in Australia
I must determine whether revocation of the cancellation is or is not in the best interests of a minor child affected by the decision. There is only one minor child affected by the decision and that is the applicant’s grandson ‘M’. I am satisfied that a cancellation is not in the best interests of ‘M’.
Under the Direction, in considering the best interests of minor children, specific factors must be considered if they are relevant. My consideration of the relevant factors is as follows.
Nature and duration of relationship
The relationship between the applicant and M is a grandfather and grandson relationship. The relationship appears to have commenced when the applicant was released on parole in 2016 and the applicant began seeing his son (M’s father) again. When M was removed from the applicant’s son’s care and placed in foster care, the applicant took steps to ensure that he remained in contact with M. The relationship is a close one with weekly scheduled contact conducted over Facetime. The applicant also goes to considerable trouble to travel to see M regularly in person. Those who have observed the two interact comment on how loving the relationship is and how mutually beneficial it is.
Positive parental role in the future
The applicant is not M’s parent. M is currently in foster care and the parental role is fulfilled by the foster carers.
Impact of prior conduct and likely future conduct
Apart from the fact that the applicant’s offending led to the applicant being entirely absent from M’s life prior to his release from prison, there is no evidence that it had an impact on M. His influence on M since being released from prison has been wholly positive. He has proven himself to be a reliable and responsible grandfather.
The effect of separation
The evidence establishes that if the applicant is removed to the US, then it is likely to have an adverse impact on M.
I am not satisfied that if the applicant is removed to the US that he will have access to the medication which he takes to control his schizophrenia and his addiction to opioids.[65] In the absence of this medication, it is likely that he will suffer psychotic episodes and other adverse health outcomes. In that event it is unlikely that the applicant will be able to continue the regular contact that he currently has with M over Facetime. The visa cancellation will reduce any physical contact between the two to zero.
[65] This is discussed further below.
This will have an adverse effect on M. The descriptions of his relationship and interactions with the applicant indicate that they are warm and positive. M’s foster mother is keen for them to continue. She believes that M’s behaviour is better when his grandfather is around.
Others who fulfil a parental role
M’s foster parents fulfill the parental role.
Views of the children
M has not been asked for his views.
Risk of exposure to family violence or other neglect
The are no issues of abuse or neglect in any way connected with the applicant.
Experience of trauma
M has not suffered any trauma as a result of his interactions with the applicant.
This consideration weighs in favour of not cancelling the applicant’s visa.
Expectations of the Australian Community
As the Direction makes clear, 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, the Australian community, as a norm, expects the Government not to allow such a non-citizen to remain in Australia. As a double murderer who was, at one point, serving three life sentences the applicant has not met this expectation.
The Direction goes on to say that visa cancellation may be appropriate simply because the nature of the offences are such that the Australian community would expect that the person should not continue to hold a visa. The nature of the applicant’s crimes falls into those categories.
These expectations apply regardless of whether the non-citizen poses a measurable risk of causing harm to the Australian community.
This consideration weighs heavily against revoking the cancellation of the applicant’s visa. The applicant’s breaches of the law are so serious that the expectation of the community is that he would not be allowed to stay in Australia.
However, I do not accept the submission advanced by the respondent that the crimes reveal fundamental character concerns about the applicant which should inform the visa cancellation decision. If I was considering such a submission in the late 1990s I would readily accept it. However, as things stand at present it is clear that the applicant’s character in the 1990s was significantly different to the character of the man who appeared before me. The changes were noted in the context of the sentence redetermination process in 2008 and were well described by the witnesses who had met the applicant in recent years. Witnesses now describe a thoughtful, helpful, generous spirited man. None of those adjectives would have appropriately described the applicant in the 1980s and 1990s. Justice Adams, who had the benefit of seeing the applicant a number of times over the years accepted the evidence of prison officers and psychiatrists who had seen the applicant over the years and was satisfied that the applicant had changed for the better between his first unsuccessful application for a sentence re-determination in 1995, and his last and successful, one in 2008.
Having said that, nothing changes the deemed fact that the expectation of the Australian Community is that a person who has murdered two people would have their visa cancelled. This factor weighs very heavily against the applicant.
OTHER CONSIDERATIONS
Legal consequences of the decision
Pursuant to the Direction, I need to be mindful that unlawful non-citizens are, in accordance with s198 of the Act, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section. Accordingly, if I cancel his visa, he will be held in immigration detention until he can be removed from Australia. The applicant will be removed to the US as he remains a US citizen.
These legal consequences of the decision are not desirable from the applicant’s point of view but that is not reason that they should be given weight in favour of or against the cancellation of his visa.
Extent of Impediments if Removed
I am also obliged to consider the extent of any impediments that the non-citizen may face if removed from Australia to the US, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of the US), taking into account:
· the non-citizen’s age and health;
· whether there are substantial language or cultural barriers; and
· any social, medical and/or economic support available to them in that country.
The applicant is a citizen of the US. There are no substantial language or cultural barriers which the applicant will experience living there. He lived there until he was 12 and so he will be familiar, at least in a general sense, with how the society functions.
The applicant is however about to turn 70 and is showing signs of cognitive decline. This was confirmed in the report of Dr Watson-Munro.
Given the applicant’s age and current level of functioning it is very unlikely that the applicant will be able to find work in the US. Consequently, he will be largely dependent upon the US welfare system to provide him with sufficient funds to house, feed and clothe himself.
There is some disagreement between the parties about the extent to which the US welfare system will provide for the applicant. The applicant contends that because US social security depends upon having a work history in the US, it is unlikely that the applicant will be entitled to anything.[66]
[66] Applicant’s Statement of Facts, Issues and Contentions at [55]-[56].
The respondent’s position is that any conclusion about the comparability of the welfare system in Australia and the US must be based on evidence and submits that the evidence available to the Tribunal supports the conclusion that the applicant is likely to be eligible for Supplemental Security Income (SSI) from the Federal Government. SSI payments would amount to $841 USD per month. The respondent concedes that if that sum were the only amount received by the applicant it would put him below the Federal Poverty Level. The respondent notes that depending on where the applicant decides to settle, he may be entitled to supplementary state benefits.[67]
[67] Respondent’s Statement of Facts, Issues and Contentions at [95]-[97].
This evidence suggests that the applicant would be poor if he returned to the US, but not destitute.
However, the real cause for concern for the applicant is that he would lose subsidised access to Buvidal and the medication which he takes to control schizophrenia. The respondent does not deny the proposition that the applicant at present does have subsidised access to medication for his schizophrenia and his opioid addiction but says that there is insufficient evidence available to the Tribunal to conclude that the applicant will not be able to access adequate medication if he is deported to the US. [68]
[68] Ibid at [97].
I do not accept that submission. The applicant has established that at present he is able to access the necessary medication because it is subsidised in Australia. The applicant has established to my satisfaction that due to his cognitive impairment he will be unable to work when he is in the US. Further, I am satisfied that any welfare support which is readily available to him is likely to be insufficient to cover basics such as food and shelter. The applicant will need to purchase his medications using limited funds and after more pressing matters have been attended to. In the absence of evidence from the respondent that subsidised medicine is generally available in the US, I am not prepared to assume that it is. The more reasonable basis to proceed on is that medicine is not subsidised and will have to be paid for by the applicant out of very limited resources. In these circumstances it appears unlikely that the applicant will be able to continue with the regime of medication which presently keeps him stable.
The evidence is clear that the applicant needs his medication. When his schizophrenia medication was temporarily unavailable to him in Villawood, he began to hear voices. This suggests that the applicant’s mental health will decline very rapidly upon arrival in the US. Given his already diminished cognitive functioning, I have no difficulty accepting that a very likely scenario and perhaps even the most likely scenario, is that in the absence of any support, with only limited access to funds and no access to subsidised medicine, it will be very difficult for the applicant to obtain food, clothing and shelter, let alone the more sophisticated medical care which has provided him with a very high degree of mental stability.
The evidence at the very least establishes that there are likely to be delays in the applicant getting access to medication. If that occurs, the consequences are likely to be disastrous. Returning the applicant to the US would, in all likelihood, leave the applicant destitute and homeless and suffering significant mental health problems.
This consideration weighs very heavily in favour of revocation.
Impact on Australian business interests
I have no evidence about the impact on Australian business interests. Accordingly, I give these considerations neutral weight.
OTHER CONSIDERATIONS
Conflict with parole conditions
In closing submissions, the applicant raised for the first time an argument that any deportation would be in conflict with his parole conditions as any overseas travel requires permission. Given how late this submission was raised and how limited the opportunity was for the respond to deal with it, I do not propose taking it into consideration in the weighing process.
CONCLUSION
Informed by the principles in paragraph 5.2 of the Direction, I have taken into account the considerations identified in sections 8 and 9 of the Direction which are relevant to this decision.
The following considerations weigh in favour of a decision to affirm the cancellation of the visa:
· protection of the Australian community from criminal or other serious conduct; and
· the expectations of the Australian community.
The following considerations weigh in favour of setting aside the cancellation:
· the strength, nature and duration of the applicant’s ties to Australia;
· the best interests of minor children; and
· the impediments which the applicant may face in establishing himself and maintaining basic living standards when he is deported.
The family violence consideration and the impact on Australian business interests are both neutral.
This decision is a difficult one. The offences which the applicant has committed are so serious that in many contexts they would in and of themselves justify cancellation of the visa. As the respondent noted in his closing submissions, there is support within the Direction and in decisions of the Federal Court,[69] for the proposition that even if there is no discernible risk of criminal conduct being repeated, it would still be an available, rational and reasonable exercise of the discretion to cancel the visa.
[69] Moana v Minister for Immigration and Border protection [2015] FCAFC 54.
However, more must be done than establish that it is within the bounds of rationality for me to weight the nature of the applicant’s prior criminal conduct so heavily that an exercise of the discretion in that way would be legally defensible. In the present case, I am obliged to make the preferable discretionary decision based on the evidence before me and in light of the considerations which the Direction requires me to take account of.
In the current circumstances I accept that the applicant has committed the most serious offence – twice. I accept that the second offence was accompanied by many aggravating circumstances. Those facts alone provide a powerful reason for removing the applicant from Australia permanently.
However, for reasons I have already explained, I consider the risk of him committing any further offence to be extremely low. I consider the risk of him committing murder to be close to non-existent provided he remains on Buvidal. In those circumstances, the first primary consideration and the expectations of the Australian community weigh powerfully in favour of cancelling the visa but not so powerfully that a different conclusion could not be reached having regard to other matters.
Given my findings that the applicant will, at the very least, experience delay in accessing the medications which are essential for maintaining his proper mental functioning and the complete absence of anyone in the US who could assist or support him, I am reasonably satisfied that the applicant’s future in the US would involve abject poverty as a result of untreated mental illness.
In circumstances where there is strong evidence that the applicant has reformed and changed and has, for some time now, made positive contributions to his community by caring for others, a visa cancellation is not appropriate. Returning the applicant to the US will provide no safety benefit to the broader Australian community, but is likely to impose terrible hardships on the applicant and his relatives and supporters.
In those circumstances, I am satisfied that the preferable exercise of the discretion is to decide not to cancel the applicant’s visa. The decision under review is set aside and substituted with a decision not to cancel the applicant’s visa.
Date(s) of hearing: 21 and 22 January 2025 Date final submissions received: 22 January 2025 Solicitors for the Applicant: Nikjoo Lawyers Counsel for the Respondent Mr Douglas Freeburn Solicitors for the Respondent: Clayton Utz
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