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

[2021] AATA 3895

Martin and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3895 (26 October 2021)

Division:GENERAL DIVISION

File Number(s):      2021/5326

Re:Gentry John Martin

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:26 October 2021

Place:Sydney

The Tribunal sets aside the reviewable decision of the Delegate of the Minister dated 3 August 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.

....................................[sgd]....................................

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – mandatory cancellation of visa – Class TY Subclass 444 Special Category (Temporary) visa – where visa was cancelled under section 501(1) because applicant did not pass character test – substantial criminal record – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – family violence – best interests of minor children in Australia – expectations of the Australian community – other considerations – extent of impediments if removed – strength, nature and duration of ties to Australia – impact on victims – links to the Australian community – decision set aside and substituted

LEGISLATION

Migration Act 1958(Cth) ss 499, 500, 501, 501CA, 501E

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

SECONDARY MATERIALS

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M Griffin QC

26 October 2021

1. The Applicant seeks review of a decision on 19 November 2020 cancelling the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (visa) pursuant to subsection 501(1) of the Migration Act 1958 (Cth) (the Act). The cancellation was on the basis that the Applicant had not passed the character test. This aspect of the matter is not in dispute. A Delegate of the Respondent on 3 August 2021 refused to revoke that mandatory cancellation and it is that decision which the Applicant seeks to have reviewed.

FACTS

2.       The Applicant was born in New Zealand in September 1981 and arrived in Australia in March 2002. As will be discussed below, many of his family members, including siblings, live in Australia and his 17-year-old son and a number of nieces and nephews also reside in Australia.

3.       It is not in dispute that the Applicant does not pass the character test.

4.       Set out below are the convictions which relate to the Applicant.

Court	Date	Event/Offence	Result
Belmont Local Court	20 March 2008	The Applicant appears before the Belmont Local Court and is found guilty of: -    learner not accompanied by driver/police officer/tester; and -    fail to display 'L' on car as required.	The Applicant is fined $400 and Court costs of $70.
Blacktown Local Court	23 February 2016	The Applicant appears before the Blacktown Local Court and is found guilty of: -    drive vehicle, illicit drug present in blood etc - 1st off.	The Applicant is fined $400 and is disqualified from driving for 3 months.
Mount Druitt Local Court	7 September 2020	Refer to 6 June 2020 event.	An Apprehended Domestic Violence Order is made against the Applicant for the protection of MB.
Mount Druitt Local Court	6 June 2020	On 26 October 2020, the Applicant appears before the Mount Druitt Local Court and is convicted and sentenced for the following offences committed on 6 June 2020: -    stalk/intimidate intend fear physical etc harm (domestic); -    damage to property by fire/explosion with intent to injure; -    and two counts of damage to property.	The Applicant is convicted and sentenced to an aggregate term of 16 months imprisonment

5.       As to the Applicant’s history of offending, that offending is of quite limited character, commencing with some minor traffic infringements in 2008. Prior to that, an Apprehended Domestic Violence Order (AVO) was made, citing the Applicant, for the protection of a former partner. Little can be made of this AVO against the Applicant on the evidence, in the Tribunal’s opinion.

6.       The Applicant committed offences of stalking and intimidating intending as to cause fear, damage to property, and damage to property by fire with intent to injure on 6 June 2020. These offences, which led ultimately on appeal to an Intensive Correction Order, is the real substance of the issues at the heart of this hearing and will be discussed further below.

ISSUES

7.       The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.

8.       The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.

RELEVANT LEGISLATION AND POLICY

9.       Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

10.     Section 501CA(4) provides that:

(4)The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.

11.     Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.

12.     The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.

13.     Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal or review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

14.     The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(a)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework and will not cause or threaten harm to individuals or the Australian community (paragraph 5.2(1));

(b)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 (paragraph 5.2(2));

(c)the Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community (paragraph  5.2(3));

(d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));

(e)decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).

15.     Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

16.     Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).

(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).

(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).

17.     These principles are of course dependent upon the facts and circumstances of each case.

18.     The primary considerations are:

(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)The best interests of minor children in Australia (Primary Consideration 3); and

(4)Expectations of the Australian community (Primary Consideration 4).

19.     The Tribunal must also take into account other considerations insofar as they are relevant.

20.     These considerations include (but are not limited to):

a)International non-refoulement obligations;

b)Extent of impediments if removed;

c)Impact on victims;

d)Links to the Australian community, including:
i)   strength, nature and duration of ties to Australia;
ii)  impact on Australian business interests.

THE CHARACTER TEST

21.     As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.

22.     For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.

23.     In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.

EXERCISING THE DISCRETION

24.     In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.

Primary Consideration 1 – Protection of the Australian community

25.     Paragraph 8.1 of Direction No. 90 provides:

(1)    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or 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.

26.     Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also give consideration to:

a)the nature and seriousness of the non-citizen's conduct to date; and

b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the Applicant's conduct to date

27.     Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(i)violent and/or sexual crimes;

(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

(i)causing a party to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c);

(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

c)with the exception of the crimes or conduct mentioned in subparagraph a)(ii), a)(iii) or b)(i) above, the sentence imposed by the courts for a crime or crimes;

d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

e)the cumulative effect of repeated offending;

f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

28.     Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i)    information and evidence on the risk of the non­ citizen re-offending; and

ii)   evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Seriousness of offending and future risk

29.     Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.

30.     The Applicant’s offending is not extensive and, in fact, when viewed against the background of the facts relating to the offences in June 2020, it is the Tribunal's opinion that the offending, overall, should not be regarded at the higher end of the seriousness category of offending. So much is clear from the facts and circumstances that were placed before the Court at first instance and which, on appeal, were dealt with by the learned Appellate Judge by way of imposing an Intensive Correction Order on the Applicant.

31.     In the Tribunal's opinion, it is clear enough that the Applicant did not actually harm his former partner on the occasion of his offending although he behaved in an emotionally extravagant and reckless way, obviously out of jealousy and affected by alcohol. Any harm that the Applicant really intended, on the facts, in the Tribunal’s opinion, was to himself and in a theatrical gesture to gain attention and sympathy from his former partner. Of course, having said that, the Tribunal accepts the dangerous behaviour of setting light to the bedding that could have had more serious consequences.

32.     The Tribunal accepts that the Applicant has insight into his offending and has taken steps after committing the offences to have remediated his behaviour and attempted some form of rehabilitation. The expressions of remorse and attempted rehabilitation are genuine, in the Tribunal’s opinion.

33.     The Tribunal accepts the opinions expressed in Dr Kwok’s psychological report that is balanced and deals with a number of relevant matters in a neutral, objective and fair way.

34.     Of particular significance which weighs strongly in the Applicant’s favour, is the particularly limited and low-level sentence ultimately imposed on the Applicant for these offences on appeal. In the Tribunal’s opinion, the imposition of an Intensive Correction Order speaks to the relatively lower level of seriousness of offending and culpability of the Applicant. This weighs particularly in the Applicant’s favour in assessing this consideration both in terms of seriousness of offending and assessment of future risk.

35.     The Applicant is supported by positive representations from those who know him, including family, and the Tribunal concludes these representations properly attest to likely future good behaviour. The Applicant is also supported in this regard in a positive way by his former partner, which the Tribunal considers important and weighs in the Applicant’s favour strongly.

36.     There are a number of protective factors including the concern and proffered assistance of family and the real possibility of employment. The Applicant has demonstrated in the past the determination and ability to abstain from alcohol for a lengthy period of time and the Tribunal can see no reason why the Applicant will be unable to follow this course in the future.

37.     Furthermore, the Applicant’s behaviour whilst in custody and detention has been unexceptionable and suggests the commencement on a path of rehabilitation.

38.     In the Tribunal's opinion, although the offending in June 2020 was serious, there is little else of relevance in an offending sense in the Applicant's past criminal history. In the Tribunal’s opinion, the offending in June was primarily directed at property. There was every opportunity for the Applicant, had he wished to do so, to have done physical injury to the former partner.

39.     Overall, having regard to attempts at rehabilitation since he was placed in custody, the overall picture presented of the Applicant’s offending and the fair and realistic view provided by his former partner to the Tribunal as to her attitude to the Applicant and his offending, it is the Tribunal's opinion that the overall offending should not be regarded at the higher end of the seriousness range and that, taking all the evidence into account, there is a limited likelihood that the Applicant is likely to offend in the future. This consideration, therefore, carries limited weight against the Applicant.

Primary Consideration 2 – Family violence committed by the non-citizen

40.     Paragraph 8.2(1) of Direction No. 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

41.     Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’.

42.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or

b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).

43.     Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:

a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and

d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).

44.     Even though the Applicant's former partner suggests in her evidence to the Tribunal that she was not overall frightened of the Applicant's behaviour on 6 June 2020, the Tribunal, however, concludes on the objective evidence that this simply is not the case and it is proper to infer that domestic violence, as it is defined under Direction No. 90, is a type of behaviour that the Applicant indulged in on 6 June 2020. This, in turn, draws attention to the provisions of that particular consideration under Direction No. 90. Furthermore, the Tribunal infers that there was an earlier incident that should properly be regarded as domestic violence which occurred in 2007 when an Apprehended Violence Order was made against the Applicant.

45.     These are two bodies of evidence, separated by 13 years, which although bringing into operation this relevant consideration of Direction No. 90, nonetheless suggest that the Applicant's behaviour in a domestic violence sense, overall, is not thoroughly serious. The behaviour, however, cannot be ignored and this consideration, to a limited extent, should properly weigh against the Applicant.

Primary Consideration 3 – Best interests of minor children in Australia

46.     Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

47.     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).

48.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

49.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));

b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways  (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

50.     The Applicant has a 17-year-old son who presently is regarded as a minor child although he has a relatively short time until he reaches mature age. The Tribunal accepts that there is an appropriate and loving relationship between the adolescent son and the Applicant. The Applicant also refers to a number of nieces and nephews who are present in his life but who, on the evidence, the Tribunal considers play relatively little practical role in their uncle’s life or vice versa and therefore, his absence from their lives, considering the likelihood of electronic communication, would make very little difference to their lives should the Applicant be removed to New Zealand.

51.     Although the Applicant raises this consideration with some force, it is the Tribunal’s opinion, however, that overall, this consideration carries very little weight in the Applicant's favour.

Primary Consideration 4 – Expectations of the Australian community

52.     Paragraph 8.4(1) of Direction No. 90 provides as follows:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.

53.     Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)   acts of family violence; or

(b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c)   commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;

(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f)    worker exploitation.

54.     The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

55.     This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

56.     This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.

57.     It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’ stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).

58.     There are two factors which are relevant to this consideration which limit the weight against the Applicant to be given to this consideration overall.

59.     The first is that in a subjective sense, the Tribunal does not regard the Applicant’s offending (particularly the offences committed in 2020) as being at the higher end of the scale of seriousness. In fact, the Tribunal regards the offending overall, in a subjective and practical sense, as being rather more at the lower end of the scale of seriousness, as evidenced by the Intensive Correction Order that was ultimately imposed by the Appellate Court.

60.     Secondly, in the Tribunal’s view, ultimately having heard the evidence of the Applicant in these proceedings and taking into account all those other relevant protective features including the steps which the Applicant has taken whilst in detention / custody, what the Tribunal accepts as real and good prospects of obtaining employment, lead to the conclusion that the Applicant is at low risk of committing further offences of any kind.

61.For these reasons, the Tribunal apportions little weight to this consideration overall against the Applicant.

OTHER CONSIDERATIONS

62.     A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):

a)international non-refoulement obligations;

b)extent of impediments if removed;

c)impact on victims;

d)links to the Australian community, including:

(i)strength, nature and duration of ties to Australia;

(ii)impact on Australian business interests.

International non-refoulement obligations

63.     The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)It may not be possible at the section 501/section 501CA stage to consider non­refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

64.     There is no evidence to indicate that this consideration is relevant to this review.

Extent of impediments if removed

65.     Paragraph 9.2(1) of Direction No. 90 provides:

(1)Decision-makers must consider the extent of any impediments that the non­citizen 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.

66.     The Applicant is a relatively healthy adult male of approximately 40 years of age who would normally have the usual impediments in settling into a new country, which would include the need to find a job and emotional and psychological stressors in moving to a new country, which the Tribunal recognises is the country of the Applicant's birth.

67.     However in this case, the Tribunal regards the Applicant's childhood history and the traumatic experiences of living in that country before moving to Australia as extra factors that would make it more difficult for the Applicant to set up a new life, should he be removed to New Zealand.

68.     These factors, therefore, bear some weight in this consideration, weighing in the Applicant's favour.

Impact on victims

69.     Paragraph 9.3(1) of Direction No. 90 provides:

Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims…

70.     The Applicant’s former partner, who is also a victim of his conduct in June 2020, has provided a positive statement in the Applicant’s favour. The Tribunal notes that the parties together have a substantial joint debt and the benefits to the victim of the Applicant remaining in Australia for the purpose of paying off that debt diminishes the value of this consideration weighing in the Applicant’s favour.

Links to the Australian community

71.     Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

9.4.1.   The strength, nature and duration of ties to Australia

(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, 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.

9.4.2    Impact on Australian business interests

(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

72.     There is no evidence to indicate that the impact on Australian business interests is engaged.

73.     Most of the Applicant’s relevant family reside in Australia, including his son from a previous relationship and siblings with whom, on the evidence, he appears to have a close and satisfactory relationship.

74.     The Applicant has resided in Australia for approximately 20 years and has worked here. The Tribunal accepts that in a few weeks time when the Applicant’s son reaches his majority, the Applicant genuinely intends to establish a relationship with that son which has, in the past, been thwarted by the Applicant's former partner. That relationship will be beneficial to the Applicant’s son who suffers mental health issues.

75.     The Tribunal regards these two factors as carrying sufficient weight for this consideration to weigh in the Applicant's favour.

CONCLUSION

76.     Having regard to the view which the Tribunal has formed that there is a low risk to the Australian community by reason of the Applicant re-offending and the other factors which weigh in the Applicant’s favour, the Tribunal is satisfied that the decision of the Delegate of the Minister should be revoked.

77.     The Tribunal sets aside the reviewable decision of the Delegate of the Minister dated 3 August 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

....................................[sgd]....................................

Associate

Dated: 26 October 2021

Date(s) of hearing:	14 October 2021
Solicitors for the Applicant:	Ms Marta Mamarot, South West Migration & Legal Services
Solicitors for the Respondent:	Ms Emma Letcher-Boldt, Clayton Utz