Maki and Minister for Home Affairs (Migration) - [2019] AATA 217

Maki and Minister for Home Affairs (Migration) [2019] AATA 217 (21 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7217
Re:MAKI
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member R. Pintos-Lopez
Date:21 February 2019
Place:Melbourne

The Tribunal affirms the decision under review.

...................[sgd]................................................
Senior Member R. Pintos-Lopez
MIGRATION – Mandatory cancellation of visa on character grounds - Whether to revoke cancellation – Where applicant has a substantial criminal record – Applicant does not pass character test – Whether there is another reason to revoke cancellation – Consideration of Ministerial Direction no. 65 – Decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Ayache and Minister for Immigration and Border Protection [2018] AATA 310
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33
Cao and Minister for Home Affairs (Migration), Re [2018] AATA 1261
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Multicultural Affairs v Serevi [2000] FCA 1691
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Re Do and Minister for Immigration and Border Protection [2016] AATA 390
Re Le and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 407
Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Ministerial Direction no. 65
REASONS FOR DECISION
Senior Member R. Pintos-Lopez
21 February 2019

The Applicant seeks review of a decision made by a delegate of the Respondent, the Minister for Home Affairs (“the Minister”) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), dated 28 November 2018 (“the reviewable decision”), not to revoke the original decision, dated 7 March 2017, to cancel his Class BF transitional (permanent) visa (“the visa”) under s 501(3A) of the Act. The decision not to revoke the cancellation of his visa was made because a delegate of the Minister was not satisfied that:
(a)the Applicant passed the character test as defined by s 501(6) of the Act, as he has a substantial criminal record (as defined in s 501(7)); and
(b)there was no other reason why the original decision should be revoked.
For the reasons that follow, the Tribunal affirms the reviewable decision.
BACKGROUND
The Applicant is a 63-year-old Finnish man who came to Australia in 1978.
The Applicant has no children and does not have any social relationships with any child in Australia. He is a single man and has been so for most of his time in Australia. He was in a relationship in the early 1990s, which lasted less than five years.
The Applicant currently has no meaningful connections or friendships in Australia. He had friends in the past from the Finnish and Norwegian communities while he lived in Sydney, but has had no contact with them since moving to Melbourne in late 2009 or early 2010.
When the Applicant arrived in Australia in 1978, he worked as a cabinetmaker but, after a bout of depression, in the early 1980s, he attempted to commit suicide. The consequences of his suicide attempt prevented him from working further as a cabinetmaker.
The Applicant began to receive a disability support pension in around 1988. He has remained on a disability support pension since that time, except for the periods he has spent incarcerated and in detention.
The Applicant has a history of offences, commencing in 1980. The Applicant’s offending may be grouped into two periods, the first from around 1980 until 1985, and the second from around 2008 until 2013. The first period of offending was for relatively minor offences. For example, resisting arrest on one occasion while he was intoxicated in a public place. All of the convictions from the first period of offending resulted in relatively insubstantial punishments, including small fines and a period of probation.
The Applicant stated that his offending has, on every occasion, resulted from his consumption of alcohol. He stated that the non-offending period from 1985 to 2008 was as a result of him abstaining from alcohol.
The second period of the Applicant’s offending, similarly to the first, commenced with mostly minor offences. The second period of offending, however, culminated with a serious assault in 2011, for which he was convicted in 2013, after a trial, of intentionally causing serious injury. He was sentenced to six years imprisonment with a period of four and half years fixed, during which time he was not eligible for release on parole.
The sentencing judge for the intentionally cause serious injury offence described it as a serious and sustained attack, with a number of blows delivered to a helpless victim at night, in a public place; an assault which was unprovoked. The assault continued for a number of minutes after the victim was unconscious.
The Applicant disputes the sentencing judge’s findings in relation to the assault and the accounts given by many of the witnesses at the trial. The Applicant states that he was acting in self-defence and that the victim was still conscious at the time that the Applicant left the scene of the assault. The Applicant has made a series of allegations in relation to the prosecutor, his defence lawyers, the witnesses and the judge, stating that, among other things, they lied and engaged in corruption or fraud which perverted the course of justice. The Applicant also disputes the facts in relation to most of his convictions.
On 7 March 2017, the Applicant’s visa was cancelled under s 501(3A) of the Act, as a delegate of the Minister was satisfied that he did not pass the character test because of the operation of s 501(6)(a), having a substantial criminal record, on the basis of section 501(7)(c); and because he was then serving a sentence of full-time imprisonment at a correctional centre in Victoria.
The Applicant made an application to have the cancellation of his visa revoked. On 28 November 2018, a delegate of the Minister made a decision not to revoke the cancellation of the Applicant’s visa.
The Applicant submits that the decision to cancel his visa and the failure to revoke the cancellation ought not have been made as, in substance, he ought not have been convicted for intentionally causing serious injury in 2013 as he did not commit the offence. Further, he submits that the trial and the conviction constituted a miscarriage of justice. The consequence of this, the Applicant submits, is that the Minister should not and could not have made the decision to cancel his visa as it was made without a proper basis and, in any event, as he intends to appeal the decision, the decision to cancel was premature.
RELEVANT LAW
The Act provides for the cancellation of visas by operation of the character test in s 501 and for revocation of a cancellation under s 501CA.
Section 501(3A) of the Act provides:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)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.
Section 501(6) and (7) of the Act define what is meant by a “substantial criminal record” and provide relevantly for present purposes:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more
Section 501CA of the Act provides for revocation of the original cancellation decision under s 501(3A):
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
(Emphasis added in bold.)
Section 499 of the Act grants power to the Minister to give directions as to the manner of performance of the Act’s functions:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b)the exercise of those powers.
…
(2A)A person or body must comply with a direction under subsection (1).
The Minister has made a ministerial direction pursuant to s 499. Ministerial Direction no. 65 made under s 499 of the Act, currently applies to decisions made pursuant to s 501CA (the Direction).[1] The Direction sets out the objectives of the relevant sections of the Act, along with general principles and guidance in relation to the manner of exercising the power contained in s 501CA. The Direction then contains three parts, which apply to the exercise of certain powers. Part C applies to the revocation of decisions made under s 501CA of the Act.
[1] The Direction was made on 22 December 2014.
The Direction contains three primary considerations that must be taken into account in every decision considering revocation of a cancellation, being:
(a)protection of the Australian community from criminal or other serious conduct;  
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The Direction prescribes certain other considerations that must be considered, if and where they apply. Those other considerations, however, do not limit the considerations that may be taken into account where they are determined to be relevant. These other reasons include:
(a)international non-refoulement obligations;  
(b)strength, nature and duration of ties;  
(c)impact on Australian business interests;  
(d)impact on victims; and 
(e)extent of impediments if removed.  
The Federal Court has provided direction in relation to the balancing of the various considerations under the Direction:
(a)the Tribunal is obliged to consider the Direction and assess the degree of the considerations and, having done so, it must “put its conclusion on the issue on the scales in the manner provided for by the Direction”: Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, at [23], per Whitlam and Gyles JJ.
(b)The Tribunal is not bound to accept the version of events put by the Applicant, the decision-maker will give the Applicant’s story such weight as he or she considers appropriate in all the circumstances: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, at 91, per Davies J.
(c)When applying the discretion, the Tribunal must genuinely weigh factors leading to opposite conclusions and not artificially limit any of the factors: Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567, at [20].
APPLICATION
Following s 501CA(4)(b) of the Act, these reasons proceed to consider:
·first, whether I am satisfied that the Applicant passes the character test as defined by s 501 of the Act and specifically, whether the Applicant fails the character test contained therein because he has a substantial criminal record; or
·second, whether there is another reason why the original decision to cancel the Applicant’s visa should be revoked.
The Direction gives guidance for the exercise of the discretion provided for in s 501CA and, accordingly, sets out a framework for the Tribunal’s consideration, as set out above, by way of primary considerations and other considerations. These are considered in the reasons that follow.
Whether the Applicant passes the character test
The Applicant will have a substantial criminal record if, among other things, he has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Section 501(7)(c) of the Act. For the purposes of making that determination under s 501(7) of the Act, it is the term of imprisonment to which the Applicant was sentenced, not the term actually served, that is relevant: Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409 at 415-18, per Bowen CJ and Deane J.
The Minister submits that the Applicant has a substantial criminal record, as he has been sentenced to a term of imprisonment of 12 months or more.
The Applicant was sentenced to six years of imprisonment, with a non-parole period of four and a half years, in 2013 for the offence of intentionally cause serious injury.
The Applicant disputes the sentence. He submits that it was imposed upon him following an unfair trial. He submits, further, that the Minister’s original decision, dated 7 March 2017, by which his visa was cancelled under s 501(3A) of the Act was premature.
The Applicant filed a statement of facts, issues and contentions, setting out in substance his submission on the application, which is principally that:
(a)the Minister’s decision was premised upon the Applicant’s conviction in relation to intentionally causing serious injury;
(b)the trial was unfair and constituted a miscarriage of justice;
(c)the Applicant is in the process of appealing that criminal law conviction;
and as a result, the Minister should not, or could not, have properly made the visa decision to revoke because that visa decision was premature and without basis.
The Applicant states, relevantly, in his statement of facts that he is in the:
process of appealing to the Supreme Court – Court of Appeal Victoria, against the conviction for intentionally causing serious injury, and against the sentence. Therefore the Minister’s delegate should not have made the decision not to revoke the visa cancellation, until after the Applicant’s criminal case [has] been dealt by the relevant legal authorities… to its final conclusion through the proper course of legal processes as defined by the Victorian criminal law.[3]
[3] The Applicant's submissions contain certain formatting, including using all capitals for certain words, which has been omitted from this quote and the other extracts from his submissions cited below.
Further to his contention that the decision of the Minister was premature, the Applicant submits that he had not had sufficient time to adequately prepare his revocation request.
The Applicant relies, in part, on the Direction at Annexure at s 1(4)(b) which, in relation to a person with unresolved criminal matters, provides:
a person who does not already fail the character test, and is the subject of criminal charges in Australia, which have not yet been finalised before the relevant court, would not generally be considered under section 501 until the charges have been finally determined…
The submission based upon the Direction is misguided as s 1(4)(b) is concerned with criminal offences for which charges have been laid but have not yet been “finally determined,” meaning that a court has not handed down its decision. Once a court has handed down its decision, that decision is extant and operative unless is it overturned by a successful appeal. The section in the Direction referred to does not concern a matter that has been determined but is subject to an appeal.
The Applicant makes allegations of improper conduct against the Minister’s delegates and he makes a series of contentions and allegations in relation to his trial. The Applicant states that the “disgraceful farce of a ‘trial’ resulted in miscarriage of justice and unfair trial” as a result of the conduct of the prosecutor, the defence lawyers and the police who, he states, committed professional misconduct, perjury and perverted the course of justice. His allegations in relation to the judge are considered below in relation to his oral evidence.
The Applicant raises numerous points as to the consistency of the evidence at the trial, the video evidence, various witnesses who he claims could not have seen the commencement of the assault and evidence in relation to the seriousness of the injury.
The Applicant stated at the hearing that he had not yet commenced his appeal as he was awaiting further documents concerning the trial. Much, if not all, of the Applicant’s contentions in relation to his criminal trial are matters for a criminal appeal and not for the Tribunal.
In the reasons below, the Applicant’s submissions are considered along with the authorities and the principles regarding the limits of the Tribunal’s powers with respect to considering criminal convictions. In summary, the Tribunal is not entitled to assess the propriety of the conviction or the fairness of the trial: Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135, Fisher and Lockhart JJ, at 138. The Court in Daniele, at 138, stated further:
The conviction is the genesis of the Minister’s power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal.
At the hearing, I told the Applicant that these principles applied to his application.
I am satisfied that the Applicant does not pass the character test as he has a substantial criminal record, as defined by s 501(7)(c) of the Act, as I find that he has been sentenced to a term of imprisonment of 12 months or more.
Whether there is another reason why the decision should be revoked
Application of s 501CA(4)(b)(ii) of the Act involves considering whether there is another reason why the Minister’s original cancellation decision ought be revoked. The Direction sets out considerations that must be fairly assessed on the evidence before the Tribunal, in order to then weigh those considerations, and by putting the resulting conclusions “on the scales in the manner provided for by the Direction.”[4]
[4] Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, at [23], per Whitlam and Gyles JJ. See also Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, at 91, per Davies J and Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567, at [20].

Part C of the Direction contains three primary considerations and a number of other considerations to be taken into account when determining whether there is another reason why the decision should be revoked.
Primary considerations
As mentioned above, the three primary considerations that must be taken into account are the:
(a)protection of the Australian community from criminal or other serious conduct;  
(b)best interests of minor children in Australia; and  
(c)expectations of the Australian community.[5]
Protection of the Australian community
[5] Paragraph 13(2).
The Direction provides that decision-makers should have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[6] Decision-makers should give consideration to the:
(a)nature and seriousness of the non-citizen’s conduct to date; and  
(b)risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[7]  
Nature and Seriousness of the conduct:
[6] Paragraph 13.1(1).
[7] Paragraph 13.1(2).
The Direction contains certain factors that are relevant to the nature and seriousness of the conduct that must be considered. The applicable factors from the Direction include:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious; 
(c)the sentence imposed by the courts for a crime or crimes; 
(d)the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; and
(e)the cumulative effect of repeated offending.[8] 
Consideration of nature and seriousness of conduct
[8] Paragraph 13.1.1(1)(a)-(e).
The Applicant provided a statement of facts, issues and contentions and gave evidence at the hearing. He stated that he first came to Australia in 1978 and worked as a cabinetmaker. The Applicant stated that he came to Australia because he thought that there were better opportunities in this country. After he arrived, he worked at a number of joineries.
The Applicant stated that he stopped working in the middle of the 1980s. At that time, he fell into depression, without any prior history, and attempted suicide by cutting his wrists. The consequence of his suicide attempt was that he had numb fingers and could not lift materials the way that he had in the past. His injuries meant that he could not find work.
The Applicant has a number of criminal convictions, which may, as I have described above, be grouped into two periods; the first from 1980 to 1985 and the second from 2008 to 2013.
The Applicant has provided a document entitled “The Facts About My Criminal Record”, in which he describes the circumstances in relation to each of those convictions. His oral evidence, for the most part, was consistent with that document.
The first period of offending
The Applicant stated that, in relation to his first conviction for malicious injury in January 1980, that he was walking among a crowd during new year celebrations in Sydney, when he was pushed into a restaurant window and that it broke as a result of his putting his hand up to stop his fall. He stated that, given his account, he does not know why he was charged with malicious injury, since he was the only one who had suffered injury. He stated that the damage was purely accidental.
In February 1983, the Applicant was convicted for stealing. He accepts that he shoplifted. He stated that he had run out of money at the time, was hungry and that as a result he had shoplifted fruit from a supermarket.
In January 1984, the Applicant was convicted for assaulting a female, assaulting police and two counts of malicious injury. The Applicant stated that, at the time, he was sitting on a train in Sydney. He had an injury to his leg which made it necessary for him, in order to ease the pain, to put his leg away from the seat and into the aisle. He said that a woman passed him from behind and that as she was trying to walk past, she tripped over his leg. He stated that she got up and walked to the doors but that as the train arrived at the station that she got on her knees and started to make noises as if she were injured. The police then attempted to arrest him, at which point he pushed the police officers because they had given no explanation as to why they sought to arrest him. He stated that the two counts of malicious injury are related to his resisting arrest. He stated that the injury to the woman on the train was accidental.
In December 1985, the Applicant was convicted for the offences of “offensive manner” and resist arrest. The Applicant stated that he was arrested for being intoxicated in a public place. At the time, he said that he did not know that this was an offence in Australia, as it was accepted as normal in Finland.
The interim period
The Applicant stated that, as a result of his December 1985 conviction, he stopped drinking alcohol. He stated that he did not at that time, nor has he ever had a problem with alcohol. He stated that he did not drink alcohol every day but that, on occasion, he would drink sufficient alcohol to become intoxicated.
The Applicant accepted that all of his offending, both for the 1980s period of offending and the period from 2008 to 2013, was related to alcohol.
The Applicant stated that, in relation to the period of non-offending, from 1985 to 2008, that he had plenty of friends, that he saw some of them almost every day and that he was very close to some of his friends. He stated that his friends were from the Finnish and Norwegian communities.
The Applicant stated that at some point in the early 1990s that he commenced a personal relationship. He stated that the relationship lasted for less than five years. He stated that the relationship was close, and that he was happy in that relationship.
The Applicant gave evidence in relation to an event in or around 2008, in which he states that he was the victim of a serious assault. He stated that at that time, he was sitting on a public bench and was knocked unconscious with a house brick. The relevance of this assault, according to the Applicant’s evidence, is that the assault precipitated or was causatively responsible for his fear of public speaking, which led him to drinking alcohol again.
The Respondent submitted that the Tribunal ought not have regard to the Applicant’s evidence in relation to his 2008 assault as it was not set out in a written statement given to the Minister at least two business days before the hearing. In making that submission, the Respondent relies upon s 500(6H) of the Act, which provides:
If:
(a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
The Applicant stated that the assault was described in the sentencing judge’s remarks in relation to his 2013 conviction. The sentencing judge stated:
So you have been unemployed since the early 1980s, and living a life of isolation, with transient accommodation little if any real or deep friendships or relationships. Really living on the margins of society. A most unhappy and unsatisfying and I judge sad existence which I do take into account. You were assaulted yourself back in 1990 and you have had difficulties over much of your life with alcohol though there have also been long periods of abstinence.[9]
[9] At [23] (emphasis added).
The Applicant stated that the sentencing judge’s remarks mistakenly provide that the assault was in 1990 when, in fact, that assault occurred in around 2008.
Section 500(6H) of the Act does not contain a discretion but, rather, mandates that the Tribunal must not have regard to certain information. I find that the Applicant is not entitled to rely upon the oral evidence given in relation to the 2008 assault as that information was not set out in a written statement given to the Minister at least two business days before the hearing. I find that the assault described by the sentencing judge, referred to above, does not provide sufficient detail to determine whether it is the assault that the Applicant described in his oral evidence. In any event, the sentencing judge’s remarks do not provide any description of the assault consistent with the Applicant’s oral evidence. As a result, I will not take that information into account in making a determination.
The second period of offending
In or around 2008, the Applicant stated that he became anxious about speaking in public. The Applicant stated that his anxiety was in relation to all forms of public speaking including, for example, speaking to a person while standing in line at a bank. The Applicant stated that, in order to ease his anxiety, he began to drink alcohol once again.
In April 2008, the Applicant was convicted on two counts of assaulting an officer in the execution of duty and for failure to appear in accordance with bail. The Applicant states that at the time, that he was walking on a street in Sydney and that the police stopped to ask him to provide some form of identification. He had been drinking at the time because of his anxiety and panic attacks. The Applicant stated that he did not want to go with the police and that he resisted them when they tried to arrest him. The Applicant stated that, after arresting him, the police drove him about 20 km away from where he had been picked up, that his belongings including his wallet and keys were taken off him, and that he was told to walk home. In relation to the failure to appear in accordance with bail, the Applicant stated that, at the time, he was sick and had provided a medical certificate, but that the medical certificate was not accepted.
In May 2008, the Applicant was convicted of assaulting an officer in the execution of duty and resisting or hindering a police officer in the execution of duty. The Applicant states that, about a week after his previous conviction, “the very same corrupt officers” stopped him while he was walking on a footpath and insulted him personally and racially vilified him. He stated that he was worried about what the police might do to him at the time and as a result did not go willingly when he was ordered to get into the back of the police vehicle.
In May 2009, the Applicant was convicted of intimidating a police officer in execution of duty and failing to leave premises when required. The Applicant stated that he was at a pub and was asked to leave by a person providing security for the pub. He told that person that he intended to finish his drink, but the police arrived and arrested him. He stated that the person who asked him to leave the premises did not look like a security guard.
In relation to the conviction for intimidating a police officer in execution of duty, the Applicant stated that he was taken back to the police station, where he was held and that in order to make conversation with police officers at the station, he joked: “if I don’t get to see a lawyer soon, I’m going to find out where you live, and I’m going to tell your mummy that you’ve been naughty boy.” He stated that it was merely a joke.
In early June 2010, the Applicant was convicted of common assault. The Applicant stated that he was followed by the same person who had been the security officer in his previous offence. He stated that, while standing at traffic lights, that this person feigned an assault on him and that, as a result, he reflexively assaulted that person in self-defence.
In late June 2010, the Applicant was charged with theft, being drunk in a public place, and failure to answer bail. The charge was adjourned without conviction to June 2011 and there is no further entry of it in the National Police Certificate. In relation to this charge, the Applicant stated that he had sought to purchase alcohol and that he had not been provided with the correct change. A dispute then followed. When the police arrived, the police spoke with the store attendant and arrested him without asking for his account. She stated that he had stolen the alcohol. He stated that, on the advice of his lawyer, he pleaded guilty.
After June 2010 and before the serious assault in March 2011, considered below, the Applicant moved to Melbourne. The Applicant stated that he could not find suitable accommodation and, as a result, after he arrived in Melbourne he began staying in a backpackers’ lodge in the city.
The authorities
The Tribunal is not entitled to assess the propriety of the conviction or the fairness of the trial: Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135, Fisher and Lockhart JJ, at 138.
In assessing, particular offences, the Tribunal may not impugn a sentence or put in issue the propriety of a conviction or the fairness of the trial.[10] The Tribunal may, however, examine the circumstances surrounding the commission of the relevant offence for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the Applicant’s criminal conduct: Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at [358].[11]
[10] See Minister for Immigration and Multicultural Affairs v Serevi [2000] FCA 1691, at [13] and Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, at [25].
[11] In Brown v Minister for Immigration and Citizenship [2010] FCAFC 33, Nicholas J (with Moore and Rares JJ agreeing) at [31], noted that the Tribunal recounted the appellant’s evidence concerning the various offences for which she had been convicted and her use of drugs and that much of the appellant’s evidence concerning those matters was rejected by the Tribunal. The Tribunal concluded that the appellant was not a reliable witness.
In Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135, Fisher and Lockhart JJ, at 138, stated, further to what is set out above:
…such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the Applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination and the extent of that enquiry will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.[12]
(Emphasis added)
[12] CfMinister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, at [47] stating his “Honour did not say, nor do we take him to have meant, that the tribunal should feel free to disregard the findings of historical fact upon which the sentence was based, in particular findings as to the circumstances of the commission of the offence.”
Their Honours stated further at 139:
It is our opinion that the Tribunal is entitled to consider all evidence. It will attach appropriate weight thereto in its task of evaluating the conduct of the Applicant; but not for the purpose of assessing the propriety of the conviction.
In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, at [40] and [46], the Court stated:
at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
…
While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point.
Application
I take into account all of the evidence, including the Applicant’s oral evidence, in order to assess its relevance. The Applicant’s final offence in 2011 of intentionally causing serious injury is considered below and separately because (a) the Applicant has provided a significant amount of evidence in relation to this offence and the trial, and (b) it is of significance because the resulting conviction and sentence forms the basis for the Applicant failing the character test.
I consider the evidence above for the purpose of making findings and in balancing those findings. That consideration and balancing exercise must occur within the ambit of the permissible power of the Tribunal to make findings, as considered above by reference to the authorities.
While giving evidence, the Applicant appeared competent and forthright in giving his account although somewhat limited by his English language capacity. Notwithstanding, I found his evidence clear and cogent. Nothing in his manner of giving evidence suggested, in and of itself, that what the Applicant was providing was less than a truthful account of the events.
Despite the above, I find the Applicant lacked credibility in respect of much of his evidence because although it is possible that there are explanations diminishing the nature and gravity of his offending as compared to a simple examination of the statement listing his offences and/or evidence challenging his convictions, it is inherently unlikely that he gave truthful evidence as to why every offence for which he was sentenced in two Australian cities, over the course of a period commencing in 1980 and concluding in 2011, ought not have been made or that there are extenuating circumstances that diminish the convictions.
I accept that on occasions the Applicant’s account was truthful. For example, the evidence given by the Applicant in relation to his arrival and life in Australia and evidence given in relation to the interim period of his life between the two periods of his offending. However, it is difficult to distinguish the truthful evidence from his otherwise confected accounts. As a result, I find that much or the majority of his evidence as to the circumstances of his offending cannot be relied upon.
I find that the sentences given for his offending, without taking into account his 2011 assault are at the lesser end of punishments ordinarily imposed. Although he was sentenced for committing assaults, such as his offence in January 1984, the punishment handed down accords with a less than serious assault.
Having regard to the Direction, the crimes perpetrated by the Applicant against police officers as government representatives or officials, that is the offences for assaulting an officer in the execution of duty in 1984 and twice in 2008, resisting or hindering police officers in the execution of duty in 2008, and the sentence for intimidating a police officer in execution of duty, are serious: see paragraph 13.1.1(1)(b).
I find that, as to the frequency of his offending, that this is a factor to be taken into account as his offending is relatively constant within the two periods of his offending, but not across his whole time in Australia. A trend in increasing seriousness of the offending is considered below in the context of his offending in the 2011 serious assault. I find that there is no or negligible cumulative effect of repeated offending.
Cumulatively, I find that the offences committed against police officers are serious and that accordingly those offences, when considered alongside the Applicant’s other offending prior to 2011, weigh heavily against the exercise of discretion to revoke the decision to cancel his visa.
Intentionally causing serious injury in 2011

The second period of offending culminated with a serious assault for which the Applicant was convicted of intentionally cause serious injury in 2013 after a trial. He was sentenced to six years imprisonment with a period of four and half years fixed, during which time he was not eligible for release on parole.
The Applicant’s account of the offence
The Applicant stated that prior to his offence in March 2011, he could not sleep and went for a walk. At 2 AM, he was sitting at a bench in Melbourne’s Southbank. He stated that there were few people around him. He stated that a person came from Crown Casino and asked him for money. He stated that he told the person to go to Centrelink and seek help in the morning. He stated that he intended to be helpful in that regard. He stated that when he mentioned Centrelink, that the person grabbed him by the shirt and punched the left side of his head. He stated that in order to defend himself that he grabbed the person and they started wrestling for a few minutes after which time they both fell to the ground and that, as a result, the person hit the back of his head and that also as a result of the fall, the Applicant’s head hit the person’s face. He stated that they both continued to struggle, but that he was eventually able to get up and leave the scene.
The Applicant stated that at the trial that many things were not told to the judge, including that, at the committal, a witness attested that he saw the Applicant being assaulted by a man. He stated that this was the only witness who had seen the start of the fight.
He stated that, at the trial, important video evidence was improperly edited and excluded from evidence by the prosecutor. The Applicant stated that the injury to the face of the victim, relevantly the broken bone, was in relation to a bone that was very easy to break because it was very thin. He stated that witnesses gave evidence of events that they could not have seen and that there were a number of inconsistencies, including in relation to the medical evidence, which were not consistent with a finding of guilt. He stated that his lawyer failed to tell the jury about the conflicting evidence.
In response to cross-examination by the Respondent in relation to the judge’s sentencing remarks, the Applicant stated that the judge was biased and that he was telling lies. He stated that what he meant by the judge telling lies was that the judge knew the truth but consciously told lies in his reasons. He stated that the prosecutor and his defence lawyer also told lies.
When asked whether he was remorseful for the serious assault, the Applicant stated that he could not feel remorse because he had not committed a crime. The Applicant said that he was sorry that the victim was injured.
The sentencing judge’s reasons for sentence
In April 2013, Tinney J handed down his reasons for sentence in relation to the Applicant’s conviction of intentionally causing serious injury.
His Honour stated that the consistent theme of the evidence was of the Applicant being the larger man, the aggressor, of him launching an attack upon the victim, swiftly bringing him to the ground and then committing a sustained attack upon him using his fists and feet. Most importantly, his Honour found that the Applicant had struck many blows including after the victim was rendered unconscious[13].
[13] At 6.
Justice Tinney stated that there was a large number of witnesses, independent of the victim, who gave evidence of their observations. These observations were from a variety of different areas in Southbank.
His Honour stated:
it was a sustained attack, lasting certainly many minutes, not seconds and extending well after the point when your victim was unconscious. Estimates varied and there were ranges varying from 10 to 15 minutes right up to 25 minutes or half an hour…[14]
[14] At [7].
Justice Tinney summarised the account given by the Applicant at the hearing, surmising that that account was “nonsense.” Further, His Honour stated:
it did not accord with any other observation of the event from the various was stunned witnesses who observed a violent and sustained attack upon this defenceless man.[15]
[15] At [9].
The account that his Honour accepted included his finding that:
I am satisfied beyond a reasonable doubt that [the victim] did approach you to ask if you were all right and whether the you needed any help. He thought were sick, that you were unwell. Your response was to ask him if he was Muslim. He said that he was and without any further warning you punched him to the face. You then pushed him down. He asked you why you were doing this. You said because he was Muslim. He then, from his position on the ground, said that he was not a Muslim but a Buddhist trying to avoid your continued attack. Your response to that was to say, “they are shit too”. You then continued the attack upon him.[16]
[16] Ibid.
Justice Tinney determined that he would not consider or apply the criminal provisions dealing with crimes motivated by hatred or prejudice[17].
[17] At [37].
His Honour considered the level of injury sustained by the victim which included a blowout fracture of the medial wall of the orbit, bruising around the eye as well as bleeding in the eye, swelling bleeding behind the eye forcing herniation of muscle through the broken bone and a cut to the back of the head. The evidence disclosed, according to the trial Judge, that the victim had not moved from the point he was left unconscious at Southbank until the police arrived and that he was not responding at all for a period well in excess of 20 minutes[18]. The victim gave a victim impact statement to the sentencing court, stating that the attack had deeply affected him, that his life had changed as a result of the assault and that he was scared to go out[19].
[18] At [17].
[19] At [18].
After considering the Applicant’s background and prior history, Justice Tinney noted that the Applicant had a number of appearances before the courts, mostly New South Wales, but that “there is nothing coming close to offending of the seriousness of the offence for which I must pass sentence.”[20]
[20] At 24.
His Honour considered the Applicant’s prospects of rehabilitation in the context of sentencing for his serious assault:
the reports though make clear that there are many aspects of your personality that are likely untreatable. You are described as having characteristics that are rigid and prickly and self-righteous and indignant. A personality structure that is unlikely to change. You have virtually no supports or structure within the community and you have committed past acts of violence and been dealt with by the courts for them. I find that you have at best reasonable prospects of rehabilitation.[21]
[21] At 39.
Justice Tinney noted or accepted that very little was required by way of medical intervention following on from the victim’s admission to hospital. However, the victim sustained multiple facial fractures in a closed head injury. He was unconscious at the scene for a significant period.
The Applicant, his Honour noted, had claimed that the victim was pretending to be unconscious and that the victim’s injuries were not serious. His Honour stated that such submissions were fanciful in the extreme. He did, however, find that the serious injuries were a very long way from the worst category of serious injuries that the Court sees from time to time. His Honour stated:
whatever may be set as to the extent of serious injury, this is not a low-level offence and you have none of that mitigatory benefits flowing from a guilty plea or derived from expressions of remorse. You are remorseless. You ran a trial…[22]
[22] At 45.
His Honour stated:
there is not a skerrick of remorse here. You believe you have done no wrong, you believe you have caused no injuries, that you had no intent, you believe your acting in self defence. All of it nonsense.[23]
[23] At 46.
Justice Tinney convicted the Applicant and sentenced him to 6 years imprisonment and fixed a four–and-a-half year period, during which he would not be eligible for release on parole.
Application
At the hearing, I told the Applicant that I could not dispute his convictions in the manner that he had submitted. The serious assault of 2011 must be considered within the parameters of the Tribunal’s power explained in the authorities set out above.
I find that the Applicant’s evidence in relation to the serious assault is untruthful because, independently from the trial judge’s finding after hearing all of the evidence at the trial, it cannot be disputed that there were a number of independent witnesses to the assault. It is extremely unlikely that these witnesses would have colluded to give an untruthful account of the events. I accept the trial judge’s sentencing remarks without variance.
For the purpose of the present exercise of discretion, I find that the assault was serious because of its duration, lack of provocation and continuation after the victim had lost consciousness. It is also very serious because it was violent: see paragraph 13.1.1(1)(a) of the Direction. I take into account that the injuries that resulted from the assault were not at the most egregious end of the scale. The assault was serious also having regard to the six-year sentence.
I find that the Applicant’s accounts disputing almost every one of his convictions, but more importantly the serious assault 2011, shows either an intentional attempt to deceive or a failure to remember the events, which results in him being unable to gain insight into his offending. Either way, the Applicant’s accounts weigh against the exercise of discretion.
I find that there is a trend of increasing seriousness to the Applicant’s offending.
Overall, taking into account all of the evidence, I find that the Applicant’s offending is serious. In particular, the applicant has been convicted of assaulting police officers in the execution of their duties multiple times and received a significant prison sentence for his most recent offending. These crimes are serious, and weigh heavily against the Applicant..
Risk to the Australian community
In terms of the risk to community, the Direction provides:
In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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.[24]
[24] Paragraph 13.1.2(1).
The Direction states that, in considering the risk to the Australian community, decision-makers must have regard cumulatively to the:
(a)nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and  
(b)likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).  
The Tribunal is required to balance these considerations and make an assessment on the risk to the community should the applicant commit further offences or engage in other serious conduct.
The Applicant stated that there was “absolutely no chance” of his reoffending. He stated that he would be a teetotaller for the rest of his life and that he had promised God to remain so. He stated that all of his prior offending was connected to alcohol. He stated that his fear of public speaking which was a factor in his drinking alcohol had been cured in the years that he had spent in prison. As a result, he did not need to drink to ameliorate his fear. He stated that he had been in the community for 16[25] months before his trial and that he had not committed any offences and had not been drinking.
[25] Cf Sentencing Reasons at [57], which suggest that the period of release in the community was 5 months.
There was no evidence of treatment given or received by the Applicant in relation to his offending. From the Applicant’s perspective, it is not unusual for him to not have sought treatment or counselling in relation to his offending, as the Applicant disputes that he has committed the vast majority of his offences.
The increasing seriousness of the Applicant’s offending, which is considered above in relation to the nature and seriousness of the Applicant’s conduct date, is relevant when considering the risk to the Australian community. The nature of the harm to individuals should the Applicant engage in further criminal conduct and were he to commit another serious assault is serious.
The Applicant’s own account is that alcohol has played a part in every offence that he has committed. Other than this, he does not accept that he has an addiction to alcohol. It is unnecessary for me to consider whether he is addicted to alcohol. In any event, there was no evidence adduced, other than the Applicant’s oral evidence, which goes to this question. For the reasons set out above, I found the Applicant of poor credibility. I accept that the Applicant is truthful as to his desire to never consume alcohol again. However, I was not convinced sufficiently by the evidence that the Applicant would never consume alcohol again.[26] I take into account the trial Judge’s finding that the Applicant had at best reasonable prospects of rehabilitation at the time of sentencing. Given that alcohol has played a part or contributed to every offence committed by the Applicant, I consider that it is likely that the Applicant will reoffend. Put another way, I find that it is more likely than not that the Applicant will re-offend if released from detention into the Australian community, and accordingly he poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community.[27]
[26] In some cases, a high risk of recidivism may amount to a significant consideration. A pattern of criminal behaviour over 20 years suggested in one case, that an Applicant had not been deterred from re-offending. It was found that if he was unable to overcome his drug problem, there was a risk that he would re-offend: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151, at [36].
[27] See Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 at 205 (stating that when assessing the risk of recidivism, there may be a real risk of recidivism even though the chance of it occurring is less than 50 per cent. Such an assessment is a qualitative description that serves to describe something that is not farfetched or fanciful).
After balancing the likelihood of reoffending and the serious nature of the offending should the Applicant offend again, I find the Applicant presents an unacceptable risk of harm to individuals in the Australian community. I find that the risk to the Australian community weighs heavily against the exercise of discretion to revoke the cancellation of the Applicant’s visa.
The best interests of minor children
The Applicant stated that he had no family in Australia and that he did not know any person under the age of 18 years. Taking into account all of the evidence and the Applicant’s submissions, I find that the best interests of minor children in Australia is not a consideration relevant to the exercise of discretion whether to revoke the cancellation of the Applicant’s visa.
Expectations of the Australian community
In relation to the primary consideration of the expectations of the Australian community, the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.[28]
[28] Paragraph 13.3(1).
In Re Le and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 407, at [40], the Tribunal stated that:
The community has the right to expect that persons allowed to settle in this country will not make themselves into a public menace and a burden on the criminal justice system and the public purse.[29]
[29] Cf Shaw v Minister for Immigration and Indigenous Affairs. [2005] FCAFC 106, at [91] (considering the content and utility of a consideration as indistinct as the “expectations of the Australian community”).
The Direction provides in relation the expectations of the Australian community that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.[30]
[30] Paragraph 11.3(1).
Paragraph 6.3, which sets out the principles that inform the decision, by application of paragraph 7, of whether to revoke a mandatory cancellation of a visa, at paragraph 6.3(2), contains a principle directed to the expectations of the Australian community:
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
In addition, paragraph 6.3 provides relevantly:
(5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
In an earlier decision, Cao and Minister for Home Affairs (Migration), Re [2018] AATA 1261, I considered various authorities in relation to how the Tribunal must go about assessing the expectations of the Australian community.[31] I consider that the views of the Australian community that I must take into account are those of members of the community who are informed, reasonable, fair-minded and mature. I am of the view that those members, to the extent that they are informed, have knowledge of all of an Applicant’s relevant circumstances.
Application
[31] Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296 at 309; Re Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23] and Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36]. See also discussion of the character of the community expectations in Direction No. 65: YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [31] and [76], per Mortimer J; and Ayache and Minister for Immigration and Border Protection [2018] AATA 310 at [65]-[66], per Forgie DP.
I take into account all of the evidence when considering the expectations of the Australian community. The Applicant has committed a large number of offences, as compared to a person who commits a one-off offence or has some offending as a young person. I take into account that the vast majority of the offending is at the lower end of the spectrum having regard to the sentences imposed. I also take into account that the Applicant has spent periods of time in Australia as a non-productive member of the community (a fact that is relevant when considering the expectations of the Australian community) and has habitually committed offences. I take into account the serious offence of intentionally causing serious injury and its circumstances, as well as the assaults on police officers.

Having taken all of those matters into account, I find that the primary consideration of the expectations of the Australian community weighs heavily against revocation of the Applicant’s visa cancellation.
Other considerations
The Direction provides for other considerations in addition to the primary considerations. The Direction states:
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;  
b) Strength, nature and duration of ties;  
c) Impact on Australian business interests;  
d) Impact on victims;  
e) Extent of impediments if removed.[32]
[32] Paragraph 14(1).
Evidence of the impact of crime to the victim to the 2011 attack is contained in the sentencing judge’s reasons. However, the victim did not give evidence at the hearing, nor would I have expected him to do so. The evidence is insufficient, in my opinion, to be considered as a factor to be weighed in the exercise of the discretion to revoke the cancellation of the Applicant’s visa.
Similarly, there is no evidence that revocation will have any impact on Australian business interests, nor is there any evidence of non-refoulement obligations. I do not take those considerations into account.
Strength, nature and duration of ties
The Direction provides in relation to the strength, nature and duration of ties to Australia that:
Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and  
ii)More weight should be given to time the non-citizen has spent contributing positively to the Australian community.  
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).[33]
Application
[33] Paragraph 14.2.
The Applicant stated that he had no friends in Melbourne and that the friends that he had had remained in Sydney or Brisbane. He stated that he went to church every week, attended Bible study and that he spoke to other people at church.
The Applicant stated, when asked to name any friends that he had at the churches that he attended, that he did not want those people to know that he was in detention and that in any event he had thousands of brothers and sisters in Christ.
I take into account the evidence given by the Applicant, that, barring the other Christians he has met when attending church, he has no family or substantive social connections with people residing in Australia and that, therefore, there would be essentially no impact upon persons residing in Australia in that regard.
I take into account that the Applicant has been in Australia for most of his adult life having come here as a young adult. The fact of him residing in Australia for 40 years is an important matter to which I have regard. I take into account the fact that the Applicant commenced offending relatively shortly after arriving in Australia; while accepting that there was a large period in between the two periods of his offending. I take into account that the Applicant has spent little time contributing positively to the Australian community.
Taking into account the abovementioned matters, I find that the strength, nature and duration of ties weighs in favour of the Applicant, but only to a very limited extent.
Extent of impediments if removed
In relation to the extent of impediments if the Applicant is removed, the Direction provides:
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.[34]
[34] Paragraph 14.5.
The Applicant stated that if sent back to Finland he would become extremely depressed and probably suicidal. He stated that he is used to the Australian way of life.
He stated that he had four brothers and four sisters with whom he has had no contact since he left Finland.
He stated that if he returned to Finland he would not contact any of his family members. He stated that if he saw a family member that he would move to another city because he would be embarrassed about being deported from Australia.
The Applicant stated, despite having requested a Finnish interpreter to assist at the hearing, that he was not fluent in Finnish because he had not spoken the language for a very long time. The interpreter did not ultimately interpret, but rather sat with the Applicant while he gave evidence and made submissions.
I take into account that the Applicant may face some impediments in establishing himself and maintaining basic living standards if removed from Australia to Finland. However, those impediments are related to the many years that the Applicant has spent in Australia and his current age. There was no evidence of factors relating to the Applicant’s current health and I do not take this into account.
I find that the extent of impediments that the Applicant would face if removed from Australia to Finland is a factor that does not weigh significantly in favour of revocation of cancellation of the Applicant’s visa as I do not consider that there are substantial language or cultural barriers; nor is there any evidence of a lack of any social, medical and/or economic support available to him in Finland.
CONCLUSION
After balancing all of the findings set out above, and for these reasons:
(a)I find that the Applicant fails the character test as defined by s 501 of the Act because he has a substantial criminal record; and
(b)I find that there is no other reason why the original decision to cancel the Applicant’s visa should be revoked.
DECISION
The Tribunal affirms the decision under review.

147.    I certify that the preceding 146 (one-hundred-and-forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member R. Pintos-Lopez.

..................[sgd].................................................
Associate
Dated: 21 February 2019

Date of hearing:   5 February 2019

Advocate for the Applicant:     Self-Represented

Advocate for the Respondent: Mr C. Orchard

Solicitors for the Respondent: Sparke Helmore