Mejov and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 1851

Mejov and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 1851 (28 June 2023)
Division:GENERAL DIVISION
File Number: 2023/2651
Re:Mikhail Mejov
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date of Decision: 28 June 2023
Place:Melbourne

The Tribunal affirms the decision under review.
..........................[sgd]..............................................
Senior Member A. Nikolic AM CSC
MIGRATION – Visa cancellation on character grounds – citizen of Russia – Ex-Citizen Visa – whether Applicant does not pass the character test – Applicant has substantial criminal record – persistent offending between 1998 and 2020 – whether there is another reason to revoke the mandatory cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act – consideration of Ministerial Direction No. 99 – reviewable decision is affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Citizenship Act 1948 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175
Aliv Minister for Immigration and Border Protection [2018] FCA 650
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Beezley v Repatriation Commission (2015) 150 ALD 11
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 497
DOB18 v Minister for Home Affairs [2018] FCA 1523
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Ibrahim v Minister for Home Affairs (2019) 270 FCR
Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EYR19 [2021] 285 FCR 540
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] 289 FCR 256
YKSB v Minister for Home Affairs [2020] FCAFC 224
SECONDARY MATERIALS
Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022) < FOR DECISION
Senior Member A. Nikolic AM CSC
28 June 2023
INTRODUCTION

Mr Mikhail Mejov (“the Applicant”) has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Ex-Citizen Visa (“the visa”). The hearing was held on 19 and 20 June 2023 in person at the Tribunal’s Melbourne Registry. The Applicant was self-represented. The Respondent was represented by Mr Adam Cunynghame, a solicitor from Sparke Helmore Lawyers.
For the following reasons, the Tribunal affirms the decision under review.
BACKGROUND
The Applicant is a 49-year-old citizen of Russia. He was educated there and undertook approximately six years of military service, reaching the rank of Senior Sergeant.[1]
[1] Exhibit R2, 3; Exhibit R1, 35.
The Applicant arrived in Australia on 27 October 1995 as a dependant on his mother’s Partner Visa. He was then 22 years of age and has not left Australia since.[2] He refers to past work as a ‘painter, cabinet maker, and laying parquetry floors’.[3]
[2] Exhibit R1, 85.
[3] Ibid 35.
The Applicant applied for Australian citizenship on 21 January 1998, which was conferred on 24 June 1998.[4] He was subsequently convicted of knowingly and intentionally making a false or misleading statement contrary to s 50(1)(a) of the Australian Citizenship Act 1948 (Cth).[5] His appeal against conviction and sentence was denied.[6] His citizenship was subsequently revoked on 14 August 2007.[7]
[4] Ibid 48 [6]-[7].
[5] Ibid 47-65.
[6] Ibid 65 [91].
[7] Ibid 14 [23); 86.
The Applicant’s criminal history, which he does not dispute, discloses that he has been convicted of numerous offences over more than two decades since 16 April 1998.[8] His offending commenced approximately two years after arriving in Australia and he has served multiple sentences of imprisonment for crimes involving violence, drugs, dishonesty, and breaches of conditional liberty.[9] For example, he was sentenced to eight months imprisonment in 1999 for multiple counts of burglary, theft, drug possession, and other crimes. He was also sentenced to 235 days of imprisonment for reoffending in breach of an Intensive Correction Order in 2000; 29 months and two weeks for armed robbery in 2003; and 12 months for robbery in 2010. There are numerous other convictions, where shorter sentences of imprisonment or non-custodial dispositions such as fines, corrections orders, compensation, and licence disqualification were imposed.
[8] Ibid 23-28.
[9] Ibid 117-126.
In June 2010, cancellation of the Applicant’s visa was contemplated on character grounds.[10] After considering his representations, however, the then Department of Immigration and Citizenship decided on 18 November 2011 not to cancel his visa but to issue the following warning (“2011 warning”):[11]
[10] Ibid 78-84.
[11] Ibid 76-77.
NOTICE OF DECISION NOT TO CANCEL VISA UNDER SECTION 501
OF THE MIGRATION ACT 1958
On 17 June 2010 the Department of Immigration and Citizenship notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current ex-citizen visa will continue to provide you with permission to remain in Australia. However the delegate decided that you are to be given the following formal warning.
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
Some Australian government forms (including the Incoming Passenger Card completed when entering Australia) contain questions about criminal convictions and outstanding charges. It is important that you answer these correctly, declaring all criminal convictions and outstanding charges, as failure to do so would breach the law and could have serious consequences, including:
·     refusal of entry to Australia;
·     refusal of citizenship;
·     cancellation of your visa;
·     removal from Australia, and
·     criminal prosecution.
(Emphasis in original.)
The Applicant continued to commit multiple crimes despite the 2011 warning. On 31 July 2020, while serving another full-time sentence of imprisonment, a delegate of the Minister cancelled his visa (“cancellation decision”).[12] He subsequently made representations to have this revoked.[13]
[12] Ibid 86-91.
[13] Ibid 146.
On 17 April 2023, a delegate of the Minister decided not to revoke the cancellation decision (“non-revocation decision”).[14]
[14] Ibid 7-8.
On 24 April 2023, the Applicant asked the Tribunal to review the non-revocation decision.[15]
[15] Ibid 1-6.
The Tribunal must decide this application within 84 days of the Applicant being notified of the reviewable decision,[16] which ends on 10 July 2023.
[16] The Act, s 500(6L).
LEGISLATIVE SCHEME
Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”), read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test (“cancellation decision”). This includes if the non-citizen has been sentenced to a term of imprisonment of 12 months or more. The Minister is required under s 501CA(3) of the Act to provide notice of the cancellation decision as soon as practicable, and invite the affected person to respond. Under s 496 of the Act, the Minister may delegate these powers
Section 501CA(4) of the Act confers a discretionary power upon the Minister or their delegate to revoke the original decision, if the Minister is satisfied the person passes the character test, or there is another reason why the original decision should be revoked. Non-revocation decisions by ministerial delegates are reviewable by the Tribunal.[17]
[17] Section 500(1)(ba) of the Act, read in conjunction with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
ISSUES TO BE DETERMINED
When the hearing commenced, the Applicant disputed failing the character test, and claimed the Respondent’s cancellation decision was invalid because:
‘I…run away from my country got told by australian embassy in MOSCOW that they give me visa with no possibility of return ever be possible tha they will send me back and i can apply for citizen in two years which i was for nine year 1998 till 2007 and then my citizen was canceled and i got EX-CITIZEN VISA NOT MY ORIGINAL VISA THAT I COME HERE so the sentence you in 2003 i serve when i was a citizen after in 2011 i dealt with department and past my character test and receive a warning and they use same conviction from 2003 wich is they using now .
I have received a single sentence of imprisonment of 12 months or more on two occasions (in 2003 and in 2010) but only served a sentence of that duration in 2003. None of the sentences imposed on me since the insertion of s 501(3A) into the Act has exceeded 3 months.
ISSUES
My visa was purportedly cancelled by the mandatory operation of s 501(3A) of the Act, which applies (relevantly) to a person who is serving a sentence of imprisonment of 12 months or more for an offence against Australian law.
Validity of the visa cancellation
For at least three reasons, I do not believe that the Minister had the power to cancel my visa on 31 July 2020.
First, on 6 September 2019, I was released from prison and taken from there to Melbourne Immigration Transit Accommodation (MITA), where I was held for approximately ten hours. I was then released into the community, where I remained until 4 March 2020.
To the best of my recollection, I received documents from the Department that indicated that my visa had been cancelled. I not currently have a copy of those documents but have attempted to obtain them under the Freedom of Information Act. To date, the Department has not provided me with those documents.
I expect that my visa was most likely cancelled in purported reliance on s 501(3A) of the Act on or after 15 July 2019, when I started serving various short terms of imprisonment, amounting to a total effective sentence of 4 months, imposed by the County Court of Victoria. I expect the Department would have taken the view that these short sentences triggered s 501(3A)(b), while the 2003 sentence exceeding 12 months triggered s 501(3A)(a), the other limb of the mandatory cancellation provision.
If my visa was cancelled under s 501(3A) of the Act on or after 15 July 2019 and before 6 September 2019, and for whatever reason effectively revoked on or around 6 September 2019, the cancellation on 31 July 2020 was unlawful because of the reasoning in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6 at [74].
Second, I do not believe that s 501(3A) operates in the way the Minister contends. In my opinion, ss 501(3A)(a) and (b) cannot be read disjunctively, and Parliament intended that the “sentence” in the second limb should be connected with the serious offending that caused the former visa holder to fail the “narrower character test” under ss 501(6)(a) and (7)(a), (b) or (c) or s 501(6)(e). Those are not my circumstances. The sentences that I was serving at the time of the cancellation did not cause me to fail the narrower character test.
Third, the Minister relied on my 2003 conviction for armed robbery to find that I failed the narrower test. However, I was a citizen at that time. I believe that any offending committed while I was a citizen cannot be taken into account in assessing whether I failed the narrower character test, because the conduct of citizens is beyond the object of the Act, namely to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
I submit that it would be appropriate for the Tribunal to find that the Minister did not have the power to cancel my visa and that there is therefore no non-revocation decision for it to review.’[18]
(Errors in original.)
[18] ASFIC, 1-3 [3]-[13].
The Applicant also made oral submissions, some of which were of questionable relevance. This includes relying on his purported movement between prison and immigration detention in September 2019, which appears unrelated to the cancellation of his visa in the present matter almost a year later on 31 July 2020. The Applicant was notified of visa cancellation while serving a sentence of imprisonment at Marngoneet Correctional Centre.[19] His earliest release date was noted to be 22 September 2020.[20] The Tribunal is therefore satisfied that at the time of visa cancellation, the Applicant was serving a sentence of imprisonment, on a full-time basis, for an offence against a law of the Commonwealth, a State, or a Territory.
[19] Exhibit R1, 86.
[20] Ibid 117.
Several of the Applicant’s other contentions are misguided at best for the following reasons:
(a)The Applicant has received a prison sentence of 12 months or more on two occasions: 20 June 2003 for Armed robbery (29 months and two weeks); and for Robbery on 19 April 2010. The latter conviction post-dates his Australian citizenship, which was revoked in 2007.[21] Both bring him within the ambit of the character test.
(b)The Applicant claimed that because the 12-month sentence of imprisonment he received on 19 April 2010 was wholly suspended, it cannot be considered under the character test provisions. The Tribunal disagrees. The terms ‘imprisonment’ and ‘sentence’ are defined at s 501(12) of the Act, with the latter encompassing ‘any form of determination of the punishment for an offence’. Sections 501(7)(c)-(d) of the Act refer to the length of the sentence or sentences awarded, rather than how a recipient serves them. A 12-month or greater sentence of imprisonment, even if wholly suspended, is a very serious form of punishment and constitutes a ‘substantial criminal record’ for the purposes of s 501(7)(c) of the Act.[22]
(c)The Applicant claims that the shorter sentences of imprisonment he has received, when compared to the much longer sentence for Armed robbery in 2003, constitute ‘very minor offences’ that do not bring him within the ambit of the character provisions. This is not accepted. Two or more sentences of imprisonment totalling 12 months or more, reflect very serious forms of punishment and can constitute a ‘substantial criminal record’ for the purposes of s 501(7)(d) of the Act.
[21] Exhibit R1, 65 [91].
[22] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158,[73] (Allsop CJ, Griffiths and Wigney JJ); Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146, [184] (Kenny, Flick and Griffiths JJ); Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113, [114] (Nicholas J, with Moore and Rares JJ agreeing).
In terms of the Applicant’s reliance at paragraph 10 of his submissions on the Full Court’s decision in XJLR,[23] Mr Cunynghame contends this case is distinguishable when regard is had for paragraph [76]:
‘…once the power to revoke a cancellation based on the combination of the Minister’s satisfaction under s 501(3A)(a) and the fact of imprisonment under s 501(3A)(b) has been exercised under s 501CA(4), the combination of the same two factors cannot revive the duty under s 501(3A) so as to overcome the legal consequence of the s 501CA(4)(b) decision that there was another reason to revoke the cancellation.
[23] XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6; 289 FCR 256.
Mr Cunynghame said there is no evidence that a previous cancellation decision was made to cancel the Applicant’s visa prior to 31 July 2020, and the Act does not operate in the way the Applicant contends because:
‘The Minister’s duty under s 501(3A) is mandatory. That is, once the minister is satisfied of the matters set out in s 501(3A)(a) and (b) of the Act they must cancel the person’s visa, and no distinction is made between citizens and non-citizen for purpose of s 501(6)(a) and 501(7)(c). It was entirely open to the Minister to take into account his 2003 conviction for armed robbery in this regard.’
It was put to the Applicant that the 2010-2011 Notice of Intention to Cancel his Visa did not result in cancellation, and therefore could not be relied upon to claim that the visa cancellation on 31 July 2020 is invalid because it was made on the same grounds. The Applicant replied by raising for the first time a purported visa cancellation in 2019, for which no evidence was provided. The G-documents, which should constitute all documents in the Minister’s possession that are relevant to a decision in the current matter, do not refer to a 2019 cancellation decision. The Applicant did not submit any corroboration for his claim, stating that the Respondent refused to provide the relevant documents to him despite a Freedom of Information request. The Tribunal asked Mr Cunynghame directly about the possible existence of another visa cancellation decision in 2019, but he was unaware of this ‘to the best of his knowledge’. As the person who claims to have been the subject of visa cancellation in 2019, the Applicant would be expected to have retained some record of this.
The Applicant made oral submissions in support of his claims about the application of a ‘narrower character test’ as follows, which the Tribunal found incoherent:
‘I’ve got advice from a solicitor which tried to explain to me that the situation is the law which ones sort of like imply for the situation where they immigration department or Constitution of Australia or whatever they made it off to that they are protecting the Australian community on the basis of if you sort of serve a sentence of violence or you’re sentenced increasing in time if like you are not even trying to somehow to behave yourself and ah, trying to get on with your life, or whatever is sort of in this situation, that’s what I was trying to refer to the point of my sort of sentence of imprisonment for this moment is very very minor offences which I’m not say is a right thing to do but, in a way it’s been explained to me that it shouldn’t be going to the extreme of cancelling my visa on this basis.’

To the extent that the Applicant contends the Tribunal is constrained in the way it considers the character test in the context of s 501(3A) of the Act, the reasoning of Middleton J in PYDZ is respectfully adopted:[24]
58. …I do not accept that, in determining whether to revoke a cancellation decision in exercise of the powers in s 501CA(4), the Tribunal is confined to the narrow version of the character test in s 501(3A)(a). As I have already indicated by reference to the decision of Burley J in XJLR (at [88]-[89]), the Tribunal is not standing in the shoes of the original decision-maker when exercising the revocation power. The Tribunal has a separate task that it is required to perform under the Act. As the Minister submits, s 501CA(4) effectively provides for merits review of a decision made under s 501(3A) and in doing so the Tribunal is entitled to consider the broad version of the character test. This construction of s 501CA(4) is supported by the express reference in paragraph (b)(i) to “the character test (as defined by section 501)” and the notable absence of any reference to s 501(3A)(a) of the Act.
59. …
60. I agree with the following observations of Burley J in XJLR:
[90] …as noted above, s 501CA(4) provides a means for the Minister or a delegate of the Minister and, on review, the Tribunal, to consider whether to revoke the cancellation decision. Section 501CA(4)(b)(i) introduces consideration of a broader version of the character test than that which was under consideration at the time of the mandatory cancellation decision made pursuant to s 501(3A) and, of particular relevance to the present case, opens consideration of multiple offences, including those served concurrently by the applicant at the time of the decision being made under s 501CA(4).
[91] The application of the broader version of the character test accords with the statutory scheme of enabling mandatory cancellation under s 501(3A) to take place only in the clearest of cases, and more nuanced consideration to take place under s 501CA(4), when an application has been made to review the mandatory cancellation.
61. Once it is accepted that the Tribunal is entitled to look at the broad character test in s 501 then it was clearly open to the Tribunal on the evidence before it to find that the applicant did not pass the character test…
[24] PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050, [58]-[61].
The Tribunal is not satisfied the Applicant passes the character test. This is either because of the operation of s 501(6)(a) based on either s 501(7)(c) or s 501(7)(d) of the Act. He therefore cannot rely on s 501CA(4)(b)(i) of the Act.
Accordingly, the only basis upon which the Tribunal can revoke the cancellation decision is if satisfied there is ‘another reason’ for doing so.[25] The Full Court in Bettencourt[26] reflected with approval upon the approach taken in Viane,[27] about how ‘another reason’ is determined. Their Honours summarised the following principles at [27]:
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[25] The Act, s 501CA(4)(b)(ii); Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[26] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294.
[27] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
More recently, in Plaintiff M1/2021,[28] the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[28] Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).
DIRECTION 99
In making its decision, the Tribunal must comply with a ministerial direction, made under s 499(1) of the Act, known as ‘Ministerial Direction 99’ (“the Direction”).[29] This commenced on 3 March 2023, which means that although the non-revocation decision was made under an earlier Direction, a decision in the current matter must be made under Direction 99.[30] The Tribunal must make ‘the correct or preferable decision’[31] based on the material currently before it.[32]
[29] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 497, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson, 2 [4].
[30] Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48 [4]-[6] (Dowsett, Kenny and Mortimer JJ).
[31] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]-[98] (Hayne and Heydon JJ); Nathanson v Minister for Home Affairs (2022) 96 ALJR 737.
[32] AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Beezley v Repatriation Commission (2015) 150 ALD 11, [68].
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to 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.
(2)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.
(3)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 measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)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 8.55(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 measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction identifies the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature, and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[33]
[33] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[34]
EVIDENCE
[34] Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48, [57].
Documentary evidence
The Applicant initially did not provide any documents in support of his case in accordance with the Tribunal’s scheduling orders, and a telephone direction hearing was conducted on 31 May 2023 to enquire why. The Applicant said he would not call witnesses and intended to rely on the G-documents submitted by the Respondent,[35] information obtained under summons, documents requested under Freedom of Information legislation, and his oral submissions during the hearing. The Tribunal confirmed with the Applicant that he understood the effect of the so-called ‘Two Day Rule’ at ss 500(6H)-(6J) of the Act. On 14 June 2023, however, the Applicant lodged written submissions and other materials. The following was subsequently taken into evidence:
(a)Applicant’s eight-page Statement of Facts, Issues, and Contentions (“ASFIC”);[36]
(b)Journal Article by Mikhail Golichenko and Sandra Ka Hon Chun, ‘Human rights in patient care: drug treatment and punishment in Russia’ (2018) 39:12 Public Health Reviews;[37]
(c)G-Documents numbering 146 pages;[38] and
(d)Supplementary G-documents numbering 110 pages.[39]
[35] G-documents are so named because they are provided under s 501G of the Migration Act. They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
[36] Exhibit A1.
[37] Exhibit A2.
[38] Exhibit R1.
[39] Exhibit R2.
Applicant’s evidence
The Applicant affirmed at the commencement of his oral evidence that the contents of the ASFIC are true and correct. The Tribunal has considered his other documentary evidence, including handwritten statements during the revocation phase.[40] The Applicant claims the non-revocation decision is wrong because:
‘1) I am in Australia since 1995...
2) My country Russia is in war.
3) My all family in Australia and no family in Russia.
4) I strongly believe that this decision is unfair and it should be reviewed on merit.
5) I will be mistreated in Russia for the below reasons
For example, the non-revocation refers to past drug use. Credible country information supports the existence of officially sanctioned ill-treatment of drug users in the Russian Federation. As Golichenko and Ka Hon Chu recently noted in Human rights in patient care: drug treatment and punishment in Russia (Human rights in patient care: drug treatment and punishment in Russia - PMC (nih.gov)):
In Russia, the government’s official policy towards drug use is one of “social intolerance,” which seeks to legitimize and encourage societal ill treatment of people who use drugs. In practice, this policy has materialized as widespread and systematic human rights violations of people who use drugs, including by subjecting them to unscientific and ideologically driven methods of drug prevention and treatment and denying them access to essential medicines and services.’[41]
(Errors in original).
[40] Ibid 66-75.
[41] Exhibit R1, 5.
In terms of the primary and other considerations in the Direction, the Applicant’s documentary claims include the following:
‘CONTENTIONS
It is submitted that the Tribunal should exercise its discretion to revoke the mandatory cancellation of my visa for the following other reasons pursuant to s 501CA(4)(b)(ii) of the Act [provide a brief summary of the important reasons why your visa cancellation should be revoked]:
I pose a relatively low risk of re-offending and there is a realtively low risk of harm to the community even if I were to re-offend.
The expectations of the Australian community that I would not be removed from Australia are outweighed by the other considerations.
I have very close ties to Australia, including ].i came to Australia 1995 run away from Russia to reconnect with my family i believe on special JEWISH VISA and i could apply for my citizen in two year and i have full support with centrelink medicare and i leave here all my life my mother past away and my father im only one child in my family and i have no more relatives my parten wich i was living last 5 year is past away with COVID19 crisis in 2020 so that is why i can't get anyone to support me at this time.
I would face significant impediments if I were removed to my country of origin, includingThat i run away from my country in 1995 never went back Second i will be killed for my act now my country is in a war and if you send me back they will lock me up minimum that what will happened to me plus i haven't been there for 28 years no relative no house or flat no money all commonwealth country go against Russia and if you send me back you will finish my life
…
Primary considerations
8.1.1 Protection of the Australian community – nature and seriousness of conduct
I concede that the following offending is serious:
I submit that the following offending is less serious: Without wishing to minimise the impact of the theft and dishonesty offences on victims, I note that this offending is comparatively “low level”. I have not been convicted of an offence as serious as armed robbery since 2003.
…
8.2 Family violence
Not relevant.
8.3 Strength, nature and duration of ties
I have been a permanent resident of Australia since 1995 october
Expectations of the Australian community
It is conceded that there is a deemed expectation of the Australian community that non-citizens will obey the law and, if they do not, it may be appropriate to cancel their visa.
However, there is a second deemed expectation: that the Tribunal will carefully consider the facts and circumstances of the particular case to determine whether it is appropriate to cancel a visa in accordance with this first deemed expectation.
In accordance with these deemed expectations, the Australian community would expect the Tribunal to take into account factors particular to my situation, and to evaluate whether it is “appropriate” to revoke his visa cancellation having regard to all of the circumstances. These circumstances include:
My long-standing connection to Australia, having lived here for 28 years;
My strong connection to AUSTRALIA That is i come to this country is young teenager and now im is 50 years old man
The less serious nature of the recent offending that caused my visa to be cancelled;
Other Considerations
While para 8(4) of the Direction requires that primary considerations should generally be given greater weight than other considerations, the Direction does not require that other considerations be treated as “secondary”. As Colvin J held in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, it requires:
… an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration is to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances which generally apply.
Similarly, in HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 Banks-Smith J held that other considerations are to be considered individually and/or cumulatively and:
… not from the starting point of being of secondary importance but from a position that allowed for the potential for such consideration to be afforded equal or greater weight than a primary consideration”.[42]
[42] [2018] FCA 1013, [38].
It is submitted that, in the present case, the [e.g. “impediments to removal”] consideration should be afforded very substantial weight.
9.1 Legal consequences of decision
[Refer to the Direction to see if this is relevant to your circumstances.]
9.2 Extent of impediments if removed
If I am removed from Australia and returned to Russia, I will suffer the following hardship: i will be placed in jail or just send to the war and killed
9.3 Impact on victims
This consideration is note relevant as I have no contact with any of the victims of my offending.
9.3 Impact on Australia’s business interest
CONCLUSION
For the above reasons it is submitted that any risk to the Australian community is sufficiently low, and outweighed by multiple compelling reasons in favour of revocation, that the Tribunal should make orders revoking the mandatory cancellation of the Applicant’s visa under s 501CA(4) of the Act.
(Emphasis and errors in original; Footnotes omitted)

In oral evidence the Applicant said he lived in Russia until the age of 22. He recalled that his parents separated when he was six years old, and his mother raised him by herself. This conflicts with other evidence, that refers variously to the Applicant’s mother leaving the family unit, not being ‘accessible’, and his grandmother being responsible for his care.[43]
[43] Exhibit R1, 35; Exhibit R2, 2.
The Applicant said he used drugs like cannabis, methamphetamine, and heroin from the age of 13. After completing high school, he claims to have attended Russian military officer training from around 1990 to 1993 but said he did not complete this. He then undertook about six years of work with the Russian Customs Service, rising to the rank of Senior Sergeant. The Applicant agreed with the reference in 2020 court submissions that he gained an ‘appreciation for discipline, routine and structure’ during his uniformed service,[44] and claimed to have abstained from illicit drugs during this time.
[44] Exhibit R2, 3; 13
The Applicant said his mother remarried when he was 15 or 16 and he migrated to Australia as a dependant on his mother’s Partner Visa. He said it was because he wanted ‘to see a different lifestyle and community and get away from Russia’. The Applicant lived with his mother and stepfather until his mother died in 2011. He left the family home in 2012 at the age of 38 after his stepfather sold the family home. He said that he remained in contact with his stepfather who bought a ‘property somewhere else’, until his stepfather died in 2019.
In terms of his life in Australia, the Applicant referred to himself as a ‘teenager’ on arrival and contextualised his early offending in that context. When challenged that he was 22 years’ old upon arrival in Australia, the Applicant said he defined a teenager as between 17 and 25 years of age. He claimed to have worked in several roles, as a salesman, driver, and construction worker. He said his ties to Australia are very close, including because his stepbrother and friends live here. The Tribunal notes other documentary evidence referring to him having ‘two half siblings in Australia’.[45] When asked about his stepbrother, the Applicant said he they have had no contact for the last ten years.
[45] Ibid 12.
The Applicant said he relapsed into drug and alcohol abuse ‘just under a year’ after arriving in Australia. This started with smoking cannabis then use of heavier drugs like heroin. The Applicant claimed he did not use drugs or alcohol since his most recent imprisonment in 2019 or while in immigration detention. He said that he was not subjected to any disciplinary proceedings or loss of privileges because of non-compliance in custodial settings. In relation to the Applicant’s abstinence claims, he was challenged by Mr Cunynghame about his former lawyer’s submissions to the Court in August 2020, which stated: ‘Since his release from custody on 6 September 2019 and prior to his remand on 3 April 2020 he admits to using cannabis regularly and consuming alcohol but denies any heroin use’. The Applicant responded:
‘Alcohol is not a drug… it’s legal. You can go to the shop and buy it, what are you talking about? I said I sometimes smoked marijuana and I use alcohol, but alcohol is legal, it’s legal. You can go to the shop and buy it, what’s wrong with me using alcohol?...Well I drink with my meal, yeah, that’s what I mean I wasn’t’ abusing the alcohol to the point of committing a crime or drinking all day’.
The Applicant accepted that his criminal history at pages 23-28 of the G-documents was accurate. He agreed that he commenced offending approximately two-and-a-half years after arrival in Australia but claimed several times during the hearing that his ‘offences were committed when [he] was very young’. When asked if he accepted that he continued to reoffend after the 2011 warning, the Applicant responded: ‘Yes - minor offences’. He also claimed that ‘for the last 10 years [he has] been trying to behave [him]self’ and did not commit ‘any serious offences’. He claimed a solicitor told him at the time he received the 2011 warning that unless he ‘committed a serious offence’ it would not be used against him.
The Applicant was asked by Mr Cunynghame whether he had any recollection about an April 2007 Victoria Police Report relating to family violence, in which the Applicant is reported to have thrown objects, assaulted the victim, made threats to kill, and caused criminal damage.[46] He was also asked about a record referring to him as the ‘respondent on an Interim Intervention Order’ (“IIO”) in mid-2021.[47] In relation to the April 2007 police report, the Applicant said the person involved ‘made no complaints – I don’t know why they made them – I was never charged or appeared’. The Applicant said the address for this police report was his ‘parent’s house’. When asked about the reference to a Russian interpreter in the report and who would have required interpreter support, the Applicant responded: ‘My mum or stepdad’. In relation to the IIO in 2021, the Applicant said: ‘everything got withdrawn - it never got to court, and the charges got dropped’. When asked if he knew why the IIO was taken out, the Applicant responded: ‘Probably because of the charges they’ve given me’. When asked if he knew why the charges were dropped, the Applicant responded: ‘You should ask the police – I’ve no idea’.
[46] Ibid 108.
[47] Ibid 13.
The Applicant said all his offending occurred while he was under the influence of illicit drugs. When asked about the reference in the 2003 sentencing remarks to him claiming to be a user of drugs but not an addict, the Applicant agreed this is what he said. He referred to several past periods of rehabilitation, most recently in 2010 with an organisation called First Step in Melbourne. This was the last time he was under an opioid replacement therapy program. He also referred to several past periods of abstinence, but consistently relapsed.[48] When asked what he learned from past rehabilitative opportunities, the Applicant said the ‘main issue is it’s not good to be involved in drugs’, because you ‘can’t achieve goals’.
[48] Ibid 11 [30].
The Applicant claimed he last took illicit drugs in September 2019. He referred to ‘a few courses’, including a forklift driver’s licence, but has not undertaken any rehabilitative courses in custody. When asked by Mr Cunynghame if he had any plans to continue his rehabilitation if released, the Applicant said he was ‘not considering it’ because he had not been ‘under the influence of alcohol or drugs for the last three years’.
The Applicant did not swear a religious oath at the commencement of his evidence but claims to identify as Jewish because his stepfather was Jewish and he follows Jewish tradition, culture, and ‘menus’. In response to questions from Mr Cunynghame, however, the Applicant said he did not formally convert to Judaism, his mother did not identify as Jewish, and the last time he attended a Jewish ceremony was a Bar Mitzvah for his niece ‘probably 12 years ago’.
The Applicant said he is currently single and his last relationship was with a woman he lived with from early 2017 until his arrest in April 2020. He claimed to have later learned she died from COVID-19 in December 2020. The Applicant said his ex-partner had a child, but he has not had any contact with the child since being arrested more than three years ago. The Applicant did not invoke the interests of any minor children in this proceeding.
When asked about any positive contributions he made while living in Australia, the Applicant said he was employed in and out of prison and: ‘built houses, served the community in most of the good ways. I was trying to be a positive person’.
The Applicant said the last time he was employed was in 2019 when ‘working with a friend at a construction site’. When asked how much he earned, the Applicant said he received ‘cash money’ and no pay slip. He agreed that he did not pay tax on this income, did not receive superannuation payments, and was concurrently receiving unemployment benefits.
The Applicant agreed that he has no physical or mental health diagnoses and does not take medications. He aspires to an immediate return to work, claiming he could ‘probably get work straight away…in construction’ or ask his ‘friends if they need help’. He said there were ‘plenty of friends’ to stay with, who are long-term friends that he speaks to ‘every day’’. When asked by Mr Cunynghame if he could identify a particular friend he relied upon, the Applicant did not do so and instead repeated his claim about having ‘plenty of friends’. The Applicant did not lodge any statements from friends or others to corroborate offers of accommodation or employment.
In terms of the possibility of return to Russia, the Applicant initially claimed he has no relatives. When asked about references in evidence to two adult sons in Russia, with whom he regularly communicated by telephone and video,[49] the Applicant said this is incorrect and he only has one adult son and two grandchildren living in Moscow. He started communicating with his son about a decade ago and they speak every three months or so. The Applicant said his son’s two children are from two different relationships, but he is divorced from both mothers. The Applicant said he lost contact with an uncle and cousins who were about the same age as him when he left Russia, but later in his evidence referred to one cousin living in Amsterdam. When asked how he knew this if contact had been lost, the Applicant said he learned this ‘history through [his] mum’.
[49] Ibid 10 [13].
The Applicant speaks Russian and can also write in Russian, albeit with mistakes because he doesn’t practise regularly. If returned to Russia he is concerned about not having accommodation, work, or anyone to rely upon for support. The Applicant said he ‘won’t be receiving anything’, which he explained meant no entitlement to support that is comparable to Centrelink, Medicare, and other Australian benefits. The Applicant claimed he ‘would be sent to the front line’ by Russian authorities, because ‘that’s what they do’. He said that he contacted the Russian Embassy to discuss this, and his preference is to apply for a resumption of his military service if returned. If unsuccessful, he fears being arrested because of homelessness, a lack of support, and likely relapse into drug use and crime. The Applicant said he would be ‘locked up’ and ‘sent straight to jail for one year’ even if he did not commit any offences, because that is what happens to homeless people. He said the alternative to being arrested was being sent to the ‘front line’, which he considers the ‘best outcome’. When asked by Mr Cunynghame if he has ever been arrested in Russia, the Applicant replied: ‘No’. The Applicant said he may also be targeted by authorities because he comes from Australia, which opposes Russian military operations in Ukraine. He opined they might think he is ‘a spy or something’.
When asked to explain the relevance of the journal article he submitted, the Applicant referred to the absence of ‘social services’ in Russia and how it was a ‘completely different society’. It was put to the Applicant that the article was about the resourcing and treatment of drug dependency in Russia, which did not appear apposite because he claims to have overcome his drug issues. The Applicant said he would likely relapse into drug use if a resumption of his military career was not possible, which would leave him ‘no choice but to live on the streets’, commit crimes, and be arrested. He said there was ‘no treatment’ in Russia for those with drug problems ‘unless you work’.
The Applicant said he had not applied for a Protection Visa. When asked if he intended to, he replied: ‘I don’t know’.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(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.
(2) 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 conduct
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) 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:
(i)    causing a person 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 197 A 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 reoffended 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).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant has numerous crimes recorded against him during the 22-year period between April 1998 and July 2020. These are categorised as follows:
(a)Offences involving violence, threat of violence, or possession of weapons: For example, in November 2001 the Applicant was convicted of possessing a controlled weapon without excuse. On 20 June 2003 he was convicted of armed robbery.
(b)Breaches of conditional liberty: The Applicant has a very concerning history of non-compliance with judicial orders. This includes multiple counts of failing to answer bail, report to police, or comply with judicial orders.
(c)Drug Offences: Including possession and use of heroin and cannabis since 1999. It is clear from the Applicant’s evidence that his use of illicit drugs is more comprehensive than that solely disclosed by his criminal history.
(d)Driving offences: Including dangerous driving, driving with a high prescribed concentration of alcohol, failing to stop after accidents, driving while unlicenced / disqualified / suspended, and failing to submit to breath tests or failing oral fluid tests.
(e)Dishonesty offences: Including burglary, robbery, negligently dealing with proceeds of crime, theft, stealing or tampering with motor vehicles, stating a false name when requested, receiving stolen property, attempting to obtain financial advantage by deception, and multiple counts of goods in custody.
(f)Public nuisance offences: Including acting in a disruptive / abusive / riotous / disorderly manner, public drunkenness, using indecent language or threatening words in public, failing to leave licenced premises, and loitering with intent to commit an indictable offence.
The Applicant’s initial convictions in 1998 were dealt with through a Community Based Order, fines, and unpaid community work. He reoffended almost immediately. His offending is habitual, unabated, and reflects a persistent disregard for lawful authority and the rights of others. The Applicant has answered criminal charges at approximately 20 court appearances and received multiple sentences of imprisonment, which is the most severe sanction available.[50] His crimes have imposed significant adverse costs and consequences on victims and the broader community. The two available sentencing remarks from 2003 and 2020 disclose the following:
(a)On 20 June 2003, the Applicant was sentenced after pleading guilty to one count of armed robbery. This was committed on 27 November 2001 with a co-offender, during which the victim was attacked at 2.30 am on a suburban street. It was the co-offender who stabbed the victim several times, but the Court found the Applicant continued to participate despite seeing the knife and realising what was occurring. This included pushing the victim and taking his wallet. The sentencing judge considered this a ‘nasty offence’ resulting in ‘ongoing distress’ for the victim. The Applicant’s plea of guilty was made ‘late in the day’ and he was found deserving of ‘significant punishment’. The Court noted there was ‘no apparent explanation’ apart from heroin use, which the Applicant claimed was not an addiction. The Court referred to the Applicant as ‘directionless’ and found his rehabilitative prospects were ‘questionable’. He was sentenced to 29 months and two weeks of imprisonment, with a non-parole period of 17 months and two weeks. The Applicant continued to reoffend frequently in the following 20 years. [51]
(b)The most recent sentencing remarks relate to a court appearance on 14 July 2020, where the Applicant pleaded guilty to seven charges involving handling stolen goods, five counts of obtaining property by deception, and one charge of driving with a suspended licence. The dishonesty offences involved the theft of a wallet from a victim’s car and subsequent use of a credit card for multiple fraudulent transactions. The Applicant received a total effective sentence of three months’ imprisonment.[52]
[50] See e.g. Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022) <
[51] Exhibit R1, 29–38.
[52] Ibid, 39-46.
The Applicant made false claims in his 1998 citizenship application by stating he had no pending charges. This resulted in a conviction for making a false /misleading statement and his appeal against conviction and sentence was unsuccessful.[53] His citizenship was subsequently revoked on 14 August 2007.
[53] Ibid 65.

The Applicant reoffended frequently after the 2011 warning despite being aware of the consequences. The Tribunal rejects the claim he was advised by an unnamed solicitor the warning would not be used against him unless he ‘committed a serious offence’. This is uncorroborated and inconsistent with the plain meaning of the warning. The Tribunal found the Applicant’s submissions unpersuasive, self-serving, and a misguided attempt to diminish the seriousness of his persistent crimes since 2011.
In addition to the Applicant’s criminal history, the Tribunal can consider ‘other conduct to date’.[54] This includes prison records or other evidence of misconduct. There is no evidence of any non-compliance or breaches against the Applicant in custodial settings. If the Applicant’s 2019 work claims are accepted, however, he received undeclared cash income, without paying tax, and while concurrently claiming unemployment benefits.
[54] Clause 8.1.1(1) of the Direction.
The Applicant’s criminal behaviour and other conduct is collectively very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
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.
Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must consider, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the first primary consideration relates to the risk of future harm if the Applicant’s crimes or other serious conduct is repeated.[55] As Mortimer J reasoned in Assistant Minister for Immigration and Border Protection v Splendido:[56]
‘The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending. In these processes, a court acts on more than the bare historical fact of when and where a person committed offences and the legal description of those offences. Otherwise, the prejudicial and impermissible kind of reasoning to which Gageler J referred in Hughes is what can dominate any reasoning process.’
[55] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EYR19 [2021] 285 FCR 540 [81] (Wigney, Lee and Wheelahan J); Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63] (Banks-Smith J).
[56] Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595, [78] (Mortimer, Moshinsky, Wheelahan JJ).
In Tanielu v Minister for Immigration and Border Protection,[57] her Honour drew on the Victorian Court of Appeal decision in Nigro[58] when summarising how an ‘unacceptable risk’ is determined:
‘An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[57] Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, [95] (Mortimer J).
[58] Nigro v Secretary to the Department of Justice (2013) 304 ALR 535 (Redlich, Osborn and Priest JJ).
In BSJ16 v Minister for Immigration and Border Protection Moshinsky J stated that ‘…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.’[59] In Hambledon v Minister for Immigration and Border Protection, Kenny J also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.[60]
[59] [2016] FCA 1181, at [68].
[60] [2018] FCA 7, at [41].
The community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.[61] The harm that would be caused by a repeat of the Applicant’s offending is potentially devastating and could be of a physical, psychological, or material nature. Another armed robbery with a co-offender, which involved the stabbing of a victim, could result in loss of life or major physical / psychological injury. Dangerous driving or driving while affected by drugs or alcohol could also lead to the death or serious injury of other road users or pedestrians. Financial harm could result from a repeat of the Applicant’s dishonesty offending. In general terms, a continuation of the Applicant’s persistent offending would only add to the extensive financial costs already incurred in terms of police, judicial, corrections, health, and other resources spent in consequence of his frequent crimes.
[61] The Direction, cl 8.1.2(1).
The Applicant asserts he poses a ‘relatively low risk of reoffending’,[62] which is uncorroborated by expert evidence. His undertaking to ‘do [his] best not to commit a crime again’ does not inspire confidence given his history.
[62] ASFIC, 4 [20].
In terms of the Applicant’s drug use:
(a)The 2003 sentencing remarks refer to him as claiming to be a ‘drug user but not an addict’.[63] In response to an ‘oblique reference’ about the Applicant’s military service in Russia, and reference to a head injury in 1998, the Court had him assessed.[64] Psychiatrist, Dr Forrester, reported that the Applicant was not suffering a psychiatric disorder and the Court noted there was ‘no apparent explanation’ for his offending apart from heroin use.[65]
(b)Submissions on the Applicant’s behalf at a 2020 court appearance refer to him being addicted to heroin since 1998, participating in a pharmacotherapy program ‘between approximately 2002 and 2010’, and that past periods of abstinence were always followed by relapse.[66] The Tribunal notes in this regard the Applicant’s oral evidence that he started taking illicit drugs much earlier than this, including heroin, during his early teenage years in Russia. It is noteworthy that during a period of release from custody between 6 September 2019 and 3 April 2020, the Applicant admitted to regular alcohol and cannabis use, but denied heroin use.[67] He corroborated this at the current hearing, albeit after first claiming to abstinence during this period.
(c)A Court Integrated Services Program (“CISP”) report dated 5 June 2021 refers to the Applicant’s drug and alcohol use in Russia. Reference is also made to cannabis, heroin, ‘dabbling in methamphetamine use’, and ‘occasional recreational use of cocaine’.[68] The Applicant reported periods of abstinence, including one long period while receiving pharmacotherapy treatment (Methadone) from an addiction treatment centre called First Step. It was noted, however, that the Applicant ‘has not engaged in pharmacotherapy for many years’,[69] and ‘has not engaged in any form of therapeutic treatment such as counselling or rehabilitation to address his [drug] use, however expressed a willingness to do so’.[70] It was also noted the Applicant reported ‘nil engagement in any form of grief and loss support or treatment in the past’. The Tribunal infers this relates to the death of his mother in 2011.
(d)At the current hearing the Applicant said he has no plans to undertake further rehabilitation because he has overcome past drug and alcohol issues in custodial settings.
[63] Exhibit R1, 36.
[64] Ibid.
[65] Ibid.
[66] Exhibit R2, 11 [27].
[67] Ibid [31].
[68] Ibid 14.
[69] Ibid 14.
[70] Ibid 12-15.
The Applicant’s long history of alcohol and drug abuse is the root cause of his offending. While acknowledging challenging events in his past, the Tribunal does not accept that his parent’s separation or other life events persuasively explain his persistent polysubstance abuse or frequent crimes. There is limited evidence of remorse and the Applicant’s concerns focus predominantly on the personal consequences of visa cancellation. His evidence conveys a continuing poor appreciation of the consequences of his crimes on others.
The Applicant has demonstrated a persistent lack of insight and tendency towards dishonesty. His oral evidence adds to the Tribunal’s concerns because aspects of it were inconsistent, uncorroborated, or unpersuasive. Examples include:
(a)The Applicant’s claim that ‘teenagers’ are those between 17 and 25 years of age came across as self-serving and an unpersuasive attempt to deflect responsibility for his offending. Similar concerns are held about his repeated claims that his offending occurred when he was ‘very young’, has ‘been trying to behave [him]self’ for the last 10 years, ‘was trying to be a positive person’, and did not commit ‘any serious offences’ after his armed robbery in 2003.
(b)The Applicant’s claim that his lawyer told him the 2011 warning would not be used against him unless he committed a ‘serious offence’ is uncorroborated and self-serving.
(c)The Applicant’s claims about a purported period of abstinence from September 2019 until 3 April 2020 conflicted with the submissions of his own lawyer at the time. He took umbrage during this hearing at the suggestion that consuming alcohol and smoking cannabis was inconsistent with his earlier abstinence claim.
(d)The Tribunal found the Applicant’s claims about his religious faith to be unconvincing in circumstances where he has not converted to Judaism, his mother did not identify as Jewish, and his claims about engagement in Jewish practices were scant at best.
(e)The Applicant’s claim that he was not considering any rehabilitation if released, because he has not been ‘under the influence of alcohol or drugs for the last three years’ in custodial settings, was unpersuasive given persistent drug and alcohol use since childhood in Russia. His responses about what he learned from past extensive periods of rehabilitation were general and unconvincing.
(f)The Applicant’s claim that he has ‘served the community’ is uncorroborated and conflicts with the weight of evidence to the contrary. Even the scant work claims he referred to, most recently in 2019, were diminished by the revelation that he worked for undeclared cash income while concurrently receiving unemployment benefits.
(g)The Applicant’s claims that he could ‘probably get work straight away…in construction’, or ask ‘friends if they need help’, and had ‘plenty of friends’ to stay with, was uncorroborated by statements from those purportedly making these offers.
(h)The Applicant initially claimed he has no relatives in Russia, then conceded he has an adult son that he communicates with by telephone or video.
(i)The Applicant’s claims about military service in Russia ranged from making enquiries about this with the Russian Embassy in Australia and intending to apply if returned, to being forced to serve on the ‘front line’, and potentially being considered a spy because of his returnee status from Australia.
(j)The Applicant’s contention that he would remain abstinent from illicit drugs if allowed to remain in Australia but would relapse and commit crimes if returned to Russia, casts doubt on the reliability of his rehabilitative claims and motivation to remain abstinent outside of custodial settings.
(k)The Applicant’s claim that he would be ‘locked up’ and ‘sent straight to jail for one year’ by Russian authorities, even if he did not commit any offences, was uncorroborated.
(l)The Applicant’s claim that there is ‘no treatment’ in Russia for those with drug problems is contradicted by the journal article he relied upon, notwithstanding the criticisms contained in the article.
The Applicant does not persuasively convey lessons from his past rehabilitative opportunities. Any progress he may have achieved at First Step more than a decade ago, or in controlled custodial settings since, is unpersuasive given he has consistently relapsed and reoffended. The Applicant has not previously been able to make enduring changes while at liberty in the Australian community.
The Tribunal notes references to the Applicant having ‘predominantly stable accommodation’ in the past albeit with ‘periods of transience’.[71] Approximately two years ago, he referred to a friend willing to offer him accommodation if released and who has no tolerance for drug use.[72] He did not repeat this claim at the current hearing and instead relied generally on unnamed friends willing to provide accommodation and support. The protective factors invoked by the Applicant about work prospects, availability of stable accommodation, and support from friends, is unpersuasive in the absence of any statements from those who purportedly making these offers. He could have submitted statements in accordance with the Tribunal’s scheduling orders but did not. Moreover, support from longstanding friends in the past did not assist him to remain law-abiding and abstinent. The Tribunal’s concerns are only exacerbated by the Applicant’s misguided contention that he does not need further rehabilitation, because he has overcome past drug and alcohol problems in custody since 2019.
[71] Exhibit R2, 13.
[72] Ibid 15.
In asking for ‘another chance’ to remain in Australia, the Applicant submits he now understands any further offending will result in a return to prison and likely removal from Australia. Despite multiple wake up calls through sentences of imprisonment and the 2011 warning, however, he reoffended. Someone who is genuinely concerned about their personal liberty, or committed to a law-abiding life in Australia, would not have acted as he has. It is also of concern that he continues to express the misguided belief that his convictions after the Armed robbery in 2003 were for ‘very minor offences’.
In 2003 the Court considered the Applicant’s prospects were ‘questionable’. With the passage of twenty years of persistent crimes, this assessment has not improved. This is not a case where the Applicant’s conduct resulted from youth or immaturity. His behaviour reflects a pattern of consistent and persistent crimes well into middle age. He continues to have substantial and unresolved rehabilitative needs, particularly relating to illicit drug and alcohol use. Any rehabilitative progress in controlled and supervised custodial settings, however commendable, is outweighed by the persistence of his crimes. He has been unwilling or unable to meaningfully change the course of his life despite rehabilitative opportunities. Much of his residence in Australia has been spent offending, in custodial settings, or under some form of conditional liberty. Despite that, he sees no need to undertake further rehabilitation if released and cavils about whether smoking cannabis and drinking alcohol conflicts with his abstinence claims. Aspects of his evidence reflect a lack of insight. In any event, the Direction states that decisions should not be delayed for rehabilitation to be undertaken.[73]
[73] The Direction, cl 8.1.2(2)(b)ii.
The Tribunal has little confidence in the Applicant’s claims about abstinence, insight, rehabilitative progress, or the protective factors he invokes. There is an unacceptably high risk he will relapse into drug use and commit further crimes if released. When his very serious past conduct is coupled with a high risk of recidivism, and the potentially grave consequences of any repeat, the Protection of the Australian community primary consideration carries very substantial weight against revocation.
Family violence committed by the non-citizen
The Tribunal has considered the reports Mr Cunynghame took the Applicant to regarding allegations of family violence. In the absence of any evidence about convictions or court orders resulting from this material, it does not persuasively disclose family violence within the meaning of the Direction. This primary consideration is therefore not enlivened and carries neutral weight.
The strength, nature, and duration of ties to Australia
Clause 8.3 of the Direction provides:
(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) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers 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. The length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant is single with no children in Australia and one adult child in Russia. His formative years were spent in Russia before he arrived in Australia as a 22-year-old adult. His offending commenced approximately two-and-a-half years after arrival. A considerable portion of his 27 years in Australia has been spent committing offences, in custodial settings, or under some form of conditional liberty.
In terms of immediate family, the Applicant’s mother died over a decade ago and his stepfather died in 2019. In closing submissions, the Applicant relied for the first time on not be able to tend the graves of his mother and stepfather if he is removed. No previous evidence was led about the location of these graves or any role the Applicant has in tending them. That said, the Tribunal accepts that an inability to visit his mother’s and stepfather’s graves would weigh on the Applicant as the people he appears to have been closest to in Australia.

The Applicant said he and his stepbrother have not been in contact for over 10 years. There are references in evidence to a cousin who is listed as a contact on the Applicant’s prisoner file, who assisted with his citizenship application in 1998.[74] There are no past statements from the Applicant’s parents, stepbrother, cousin, or other relatives or friends. The dearth of such evidence is frankly startling given the Applicant’s 27-year residence in Australia. That said, the Tribunal considers it likely he has continuing connexions in Australia who may be emotionally affected by a non-revocation decision. In the absence of any evidence from these people, however, the extent of any impact is speculative at best. This is a case where the duration of the Applicant’s residence in Australia is quite long, but the strength and nature of his ties, on current facts, is very weak.
[74] Exhibit R1, 17 [44]117; Exhibit R2, 8.
There is limited evidence about the Applicant’s positive contribution in Australia through work, study, or other community engagement. In sentencing remarks dated 20 June 2003, the Court stated: ‘I get the distinct impression that for much of your time in Australia you have been unemployed’.[75] The documentary evidence refers to him undertaking some past work,[76] but there is no independent corroboration of this. The Applicant’s references to his most recent work in 2019 is uncorroborated and appears to consist of working for undeclared cash payments while concurrently claiming unemployment benefits. What employment the Applicant may have had in Australia is somewhat dated and intermittent at best. He appears to have been largely reliant on taxpayer-funded support and / or dishonesty offending to support himself.
[75] Exhibit R1, 35.
[76] Exhibit R2, 3.
On balance, and the most beneficial reading of the evidence for the Applicant, this primary consideration weighs moderately in favour of revocation.
Best interests of minor children in Australia
Clause 8.4 of the Direction requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
The Applicant referred to his ex-partner, now deceased, who has a child from a previous relationship. There is no evidence about how old the child is or their current location or care arrangements. The Applicant has had no contact with the child for approximately three years and said he only discovered in late 2020 that his ex-partner died from COVID-19. The Applicant makes no claims, and the evidence does not disclose, that the interests of any minor child in Australia is invoked. This primary consideration is therefore not enlivened and carries neutral weight.
Expectations of the Australian community
Clause 8.5 (1) of the Direction identifies the expectations of the Australian community:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.5(2) of the Direction states that visa cancellation, refusal or non-revocation 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. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
…
(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…;
Clause 8.5(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.5(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Clause 8.5(4) of the Direction correlates with the reasoning in FYBR.[77] Notwithstanding the different pathways in judicial reasoning, the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[78]
[77] FYBRv Minister for Home Affairs (2019) 272 FCR 454, at 471–2 [66] (FYBR) (Charlesworth J), and 476 [91] (Stewart J).
[78] Ibid at 473 [75]-[76] (Charlesworth J).
The Tribunal has considered the Applicant’s submissions regarding this primary consideration, referring to his long residence in Australia, ‘strong connections’, and purportedly ‘less serious nature of…recent offending’.
The Applicant’s offending is such that he should expect to forfeit the privilege of remaining in Australia. The community would expect, as a norm, that the Government would not allow him to remain.[79] This is so despite the length of time the Applicant has spent in Australia.[80] He has committed very serious offences during the last two decades and continues to pose an unacceptable risk of causing physical harm to the Australian community. On balance, this primary consideration weighs very substantially against revocation.
OTHER CONSIDERATIONS
[79] The Direction, cl 5.2(1)-(2); FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
[80] The Direction, cl 5.2(5).
Legal consequences of the decision
Clause 9.1 of the Direction states:
9.1 Legal consequences of decision under section 501 or 501CA
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) 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 non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns 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 Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA 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.
9.1.2 Non-citizens not covered by a protection finding
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement 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 non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 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. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to certain Conventions, Protocols and Covenants, and ‘any obligations accorded by customary international law…of a similar kind to those mentioned’ in those treaties. As held in Ibrahim v Minister for Home Affairs, non-refoulement obligations are ‘not confined to the protection obligations to which s 36(2) refers’.[81]
[81] Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 at 35 [103].
The Tribunal must give active intellectual consideration to the Applicant’s clearly articulated representations about risk of harm, regardless of characterisation.[82] This is in the context of ‘another reason’ for revocation, however, rather than the more comprehensive Protection Visa assessment process under s 36A of the Act.[83] The former requires the Tribunal to:
‘…bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate.’[84]
[82] YKSB v Minister for Home Affairs [2020] FCAFC 224, 5; Minister for Home Affairs v Omar (2019) 272 FCR 589, [34]–[44] (‘Omar’).
[83] The Direction, cl 9.1.2(2); Plaintiff M1, [39]; Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, [27]-[28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
[84] Ibid [9]; [24].
There is no dispute the receiving country pursuant to s 5(1) of the Act is Russia. The Applicant is not currently the subject of a protection finding but is entitled to apply for a Protection Visa. The Applicant states in the ASFIC:
‘I would face significant impediments if I were removed to my country of origin, includingThat i run away from my country in 1995 never went back Second i will be killed for my act now my country is in a war and if you send me back they will lock me up minimum that what will happened to me plus i haven't been there for 28 years no relative no house or flat no money all commonwealth country go against Russia and if you send me back you will finish my life
…
If I am removed from Australia and returned to Russia, I will suffer the following hardship: i will be placed in jail or just send to the war and killed.’
The only evidence submitted by the Applicant in support of non-refoulement claims is a six-year-old article, which was received by the publishing journal on 23 October 2017. It is nine pages long and refers to social intolerance and punitive drug control measures in countries including Russia ‘at the expense of public health’. The author’s purpose is to:
‘…apply the concept of human rights in patient care to consider the narcologist’s role in punitive drug policy and human rights violations against people who use drugs and to analyze how punitive drug policy manifests as human rights violations against narcologists themselves, who lose their professional independence and their ability to work according to professional standards and ethical norms. We conclude that both people who use drugs and narcologists suffer from punitive drug policy and should unite their efforts to ensure drug policy does not undermine patients’ health and human rights’.[85]
[85] Exhibit A2, 1.
The article concludes:
‘Conclusions: the way forward
People with drug dependence and narcologists should have shared health objectives, unfettered by scientifically unsound methods of drug dependence treatment and punitive drug policy. In Russia, however, punitive drug policy has severely eroded the relationship between these two groups of potential allies. With the emergence of groups such as the Russian Public Mechanism for Monitoring of Drug Policy Reform, there may be glimmers of hope. Narcologists from this mechanism, for example, have helped document human rights violations against PWUD and participated in meetings with PWUD and advocates about drug policy reform. By working together to uphold their rights, PWUD and narcologists could restore drug users’ trust in narcologists while restoring narcologists’ professional autonomy and independence from law enforcement. On the whole, the Russian public would also benefit from better public health outcomes from drug dependence treatment that is based in science and human rights.’[86]
[86] Ibid 9.
The Applicant has not previously raised non-refoulement claims.[87] The Tribunal considers his current claims to be recent, general, lacking in detail, or uncorroborated because:
[87] Exhibit R1, 66-75; 146.
(a)The Applicant’s claim that he ran away or escaped from Russia in 1995 or may be killed because of this, is contradicted by the following:
(i)A report prepared for the Court by a psychiatrist in June 2003 refers to the Applicant’s migration from Russia without reference to fleeing or escaping.[88] In his evidence at the current hearing he said that he travelled to Australia under his mother’s Partner Visa because he: wanted ‘to see a different lifestyle and community and get away from Russia’.
[88] Exhibit R2, 3.
(ii)The 2003 sentencing remarks refer to the Applicant coming from a ‘respectable Moscow family’, undertaking military service and ‘rising to the rank of senior sergeant of customs’, before deciding to ‘leave Russia…in the expectation that opportunities would be better in Australia’.[89] There is no reference to him having fled or escaped.
[89] Exhibit R1, 35.
(iii)The 2005 sentencing remarks refer to the Applicant’s life in Russia and military service in unexceptional terms, with no reference to him fleeing or escaping, including because his stepfather may have been harassed because of Jewish faith.[90]
[90] Ibid 50.
(iv)The Applicant’s counsel made the following documentary submissions during the hearing of several criminal matters in 2020, with no reference to the Applicant fleeing or escaping:[91]
[91] Exhibit R2, 10.
Personal Circumstances
10. The appellant was born on 17 August 1973 and is 46 years of age.
11. He was born in Moscow, Russia.
12. The appellant’s biological father passed away in 1991. His mother re-partnered.
…
14. The appellant migrated to Australia in October 1995.
a. He migrated with his immediate family.
(v)A CISP report dated 5 June 2021 refers to the Applicant’s migration to Australia in unexceptional terms, without mention of fleeing or escaping. The Applicant is recorded as stating he appreciated the ‘discipline, routine, and structure’ of his six years of military service in Russia.[92]
(b)In terms of the Applicant’s claims about being sent to the ‘front line’, it remains unclear, despite his explanations, how military conflict between Russia and Ukraine intersects with his circumstances. He claims that because the country he returns from is Australia, which objects to Russia’s conduct in Ukraine, he would be singled out and may even be considered a spy. He concurrently states, however, that he has contacted the Russian Embassy in Australia to discuss a potential resumption of his military service, which is his preference if removed. There is no evidence the Applicant would be arrested or press-ganged into military service if returned. Even if he was, there is no evidence this is other than enforcement of a law of general application, rather than state action enlivening non-refoulement obligations.
(c)On his own evidence, the Applicant’s drug and alcohol abuse started in Russia at the age of 13. He nevertheless claims to fear harm as a drug user if returned, or the absence of treatment for drug dependent persons, while concurrently claiming to have overcome his drug problems and remaining abstinent since 2019. The journal article he submitted is quite dated and discusses issues such as resourcing of Russian Government drug prevention efforts and the extent of Russia’s conformance ‘to a framework of human rights in patient care’.[93] There is no evidence about how the Applicant’s past drug use would become known to Russian authorities, or why he may be harmed because of it.
(d)The Applicant’s references to a lack of accommodation or support in Russia relate to Extent of impediments if removed, which is later discussed, rather than harm enlivening non-refoulement obligations.
[92] Ibid 12-13.
[93] Exhibit A2.

The Applicant’s crimes resulted in visa cancellation, rendering him an unlawful non-citizen within the meaning of s 14 of the Act. In the event of non-revocation, he would continue to be detained under s 189 of the Act until removed or granted a visa.[94] Because of the operation of s 501E of the Act, he would be prevented from applying for any visa other than a Protection Visa or a Bridging R (Class WR) Visa, pursuant to reg 2.12A of the Migration Regulations 1994 (Cth). There is no evidence his removal to Russia is not reasonably practicable, although how long this takes depends on irresoluble branches and sequels of future events. This includes the time it might take to consider another visa application he lodges, or for an appeal against an adverse decision to be heard, consideration of a request for ministerial discretion,[95] or a request for voluntary removal. There is no reliable evidence, however, about what the Applicant might do in the event of an adverse decision.
[94] The Act, s 196.
[95] For example, under s 195A or s 197AB of the Act. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
If the Applicant were to apply for a Protection Visa and have this rejected, he would be on a pathway to removal as soon as reasonably practicable.[96] If his non-refoulement claims were accepted, s 197C(3) of the Act provides that s 198 does not require or authorise removal of a person for whom a protection finding is made.
[96] The Act, s 198(2B).
Having identified some of the potentialities, the Tribunal is not required to engage in speculation or fact-finding about future events.[97] The reasoning in Aliv Minister for Immigration and Border Protection (“Ali”) is respectfully adopted:[98]
‘The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing...’
[97] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[98] [2018] FCA 650.
In DOB18 v Minister for Home Affairs[99] at [35], Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:
… In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
[99] [2018] FCA 1523.
Irrespective of decisions yet to be made or options that might emerge, non-revocation would be a significant, adverse outcome for the Applicant. It gives rise to deprivation of his personal liberty until removal from a country he has lived in for 27 years. This may have adverse impacts on his health and wellbeing. The Applicant may succeed in his efforts to resume his military service if returned, or he may not. He may be able to gain a measure of practical or emotional support from his son or others in Moscow, or he may not. Notwithstanding the Applicant’s claims that he is rehabilitated, has overcome past drug issues, and intends to lead a law-abiding and productive life, the Tribunal has little confidence in these claims for the reasons earlier expressed. If he were to relapse into drug use and reoffend, he would have to answer for that under Russia’s legal system. It is not possible to speculate, however, how someone in his circumstances would be treated by Russian authorities.
Based on current evidence, the Tribunal is unpersuaded about the Applicant’s non-refoulement claims. Given the limited time available between the end of this hearing and the 84^th day pursuant to s 500(6L) of the Act, it is appropriate to defer consideration of the Applicant’s claims to a more comprehensive Protection Visa assessment process under s 36A of the Act. This would consider his protection claims prior to consideration being given to any character or security concerns.
In the context of ‘another reason’ for revocation, however, the Tribunal finds this consideration carries neutral weight.
Extent of impediments if removed
Clause 9.2 (1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;

b)        Whether there are substantial language or cultural barriers; and

c)        Any social, medical and/or economic support available to them in that country.
The Applicant is 49 years old. He made no claims about any medical or psychological conditions or taking any medication. Submissions on his behalf for a court appearance in August 2020 stated:
‘19. The appellant does not report any diagnoses of mental health issues.
20. The appellant instructs that his mental health remains stable.
21. He is not currently prescribed any medication and never has been in relation to his mental health.
22. He has started to experience stress in relation to his immigration status.
23. He reports no issues with his physical health.’ [100]
[100] Exhibit R2, 10-11.
The Applicant did not speak any English prior to arriving in Australia and spoke Russian at home.[101] There are no discernible language or cultural impediments.
[101] Exhibit R1, 50 [16]; 53.
If returned to Russia, there is no evidence appropriate medication or treatment is unavailable to assist the Applicant with any emergent medical or psychological conditions, or in response to any drug relapse.
There is no evidence the Applicant can rely on immediate family members or friends in Russia for financial, practical, or emotional support. His initial claims about having no relatives in Russia were contradicted by evidence that he has an adult son who he has remained in contact with for the last decade by telephone and video calls. The Applicant is yet to ask his son for support. It is accepted, however, this is likely to be a difficult conversation given the Applicant has not been a part of his son’s life in the past and has not met his two grandchildren. He may also struggle to establish new friendship groups and seek employment, including because he has not returned for so long and has an extensive criminal and drug history. That said, his evidence is he has made enquiries about resuming his military service and intends applying in Russia if returned.
The Tribunal places little weight on the Applicant’s claim about not being able to rely on commensurate income support and other services available to him in Australia. That is because the requirement under the Direction is to consider an applicant’s ability to establish themselves and maintain basic living standards ‘in the context of what is generally available to other citizens of that country,’ rather than by comparison with Australia. Moreover, there is no evidence that if he needed it, the Applicant would not have the same entitlement to support services available to all Russian citizens that meet required prerequisites. It is accepted this is unlikely to be commensurate with the support available to him in Australia.
On balance, and the most beneficial reading of the evidence in the Applicant’s favour, the Tribunal accepts he is likely to experience impediments and hardship in establishing himself and maintaining basic living standards in the context of what is generally available to other Russian citizens. This consideration weighs substantially in favour of revocation.
Impact on victims
Clause 9.3 (1) of the Direction states:
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, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
This consideration is not enlivened and carries neutral weight.
Impact on Australian business interests
Clause 9.4 provides that a decision-maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened within the meaning of the Direction. This consideration is not enlivened and carries neutral weight.
Additional considerations
No additional considerations were advanced by the parties and the Tribunal has not identified any ‘other considerations’ under the non-exhaustive list at cl 9(1) of the Direction.
CONCLUSION
The Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. There is no reason on current facts to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations.
The Applicant commenced offending relatively soon after settling in Australia. He has numerous crimes recorded against him between 1998 and 2020. He made a false statement in his citizenship application in 1998, which resulted in revocation of his citizenship in 2007. He also received a formal warning from immigration authorities in November 2011 about the consequences if he continued to reoffend but continued to do so.
The Applicant’s criminal and other conduct is very serious. He continues to pose a measurable risk of causing physical harm to the Australian community and the Tribunal has little confidence in his claims about abstinence, insight, rehabilitative progress, and protective factors. There is an unacceptably high risk he will relapse into drug use and reoffend. The Australian community would expect, as a norm, that the Government would not allow him to remain here. That is so despite the community generally affording a higher tolerance to non-citizens who spend much of their life here, particularly formative years.
Given the Applicant’s long residence in Australia, the dearth of supporting evidence from relatives, friends, co-workers, and others is startling. This is a case where the duration of residence is long, but the strength and nature of ties is quite weak. The Applicant has made little positive contribution during his residence here. Any past work is quite dated, intermittent, and he has been routinely reliant on taxpayer-funded support and / or dishonesty offending to support himself. His longest period of past work appears to be during military service in Russia.
The Applicant does not have any children in Australia and does not invoke the interests of minor children within the meaning of the Direction.
There is no dispute the receiving country is Russia. The Applicant is not currently the subject of a protection finding but is entitled to apply for a Protection Visa. His current non-refoulement claims, which have not previously been raised, are general, lacking in detail, or uncorroborated. The Tribunal defers consideration of his claims to a more comprehensive Protection Visa assessment process under s 36A of the Act.
There are no discernible language or cultural impediments to the Applicant’s repatriation. He was born and raised in Russia, lived there until the age of 22, and undertook substantial military service. There is no evidence that if he needed it, he would not have the same entitlement to support services available to all Russian citizens that meet required prerequisites. It is accepted, however, this would not be commensurate with the support he has received in Australia.
The Applicant’s initial claims about having no relatives in Russia is contradicted by evidence that he has an adult son in Moscow with whom he has maintained contact for a decade. He aspires to resume military service if returned. If unsuccessful, the Tribunal accepts that after so long out of Russia and given his circumstances, the Applicant is likely to experience impediments and hardship in re-establishing himself and maintaining basic living standards in the context of what is generally available to other Russian citizens.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because two of the three relevant primary considerations Protection of the Australian community and Expectations of the Australian community, considerably outweigh the primary consideration Strength, nature and duration of ties and the other countervailing consideration.
DECISION
It follows that the Tribunal affirms the reviewable decision.

I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

…………[sgd]……………………….
Associate
Dated: 28 June 2023

Date of hearing: 19 and 20 June 2023

Advocate for the Applicant: Applicant, in person

Advocate for the Respondent: Mr Adam Cunynghame

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	19 and 20 June 2023
Advocate for the Applicant:	Applicant, in person
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers