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

Merican and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 404 (3 February 2022)
Division:GENERAL DIVISION
File Number(s): 2021/8501
Re:Mohamed Merican
APPLICANT

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

Decision
Tribunal:Senior Member P.Q. Wood
Date of decision: 3 February 2022
Date of written reasons: 3 March 2022
Place:Melbourne

The Tribunal affirms the decision under review.
.......................[sdg].............................
Senior Member P.Q. Wood
Catchwords
MIGRATION – Mandatory cancellation of visa – non-revocation of mandatory visa cancellation – Class BB Subclass 155 Five Year Return visa – whether applicant passes character test – failure to pass character test – past criminal conduct – risk would engage in criminal conduct – where Applicant made representations seeking revocation of visa cancellation – where delegate not satisfied of another reason to revoke visa cancellation – where Applicant seeks review by Tribunal – contents of Direction 90 – substantial criminal offending – best interests of minor children – history of domestic violence – protection of the Australian community – expectations of the Australian community – Applicant’s substance abuse – links to the Australian community – other relevant considerations – extent of impediments if removed – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
DPP v Amadi & Anor [2018] VCC 1472
FYBR v Minister for Home Affairs [2019] FCAFC
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 90 – Migration Act 1958 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Final Report of the National Ice Taskforce (6 October 2015)
Australian Government Department of Health, National Drug Strategy 2016–2026 (2015)
REASONS FOR DECISION
Senior Member P.Q. Wood
3 March 2022
INTRODUCTION

By application made on 11 November 2021, the Applicant seeks review of a decision by a delegate of the Minister dated 10 November 2021 not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Return visa (the visa) made under s 501CA of the Migration Act 1958 (Cth) (the Act).
The application for review is made in accordance with s 500(1)(b) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions made under s 501(1) of the Act.
The hearing of this application was held on 19 and 20 January 2022 via video link, as permitted by s 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and consistent with the Tribunal President’s Special Measures Practice Direction issued in relation to the current public health emergency.
The Applicant was self-represented. The Minister was represented by Mr Donaldson of Clayton Utz.
The Tribunal heard oral evidence via video link from the Applicant, the Applicant’s wife, the Applicant’s 14-year-old daughter, Mr Andrew Maclean (the Applicant’s friend), Mr Shane Wilkins (the Applicant’s former employer) and Mr Andrew Lyttle (the Applicant’s former employer).
The Tribunal made a decision in relation to this matter on 3 February 2022. In accordance with s 43(2A) of the AAT Act, these are the written reasons for the decision.
BACKGROUND
Personal
The Applicant is a 42-year-old male who was born in, and is a citizen of, Malaysia.[1]
[1] Exhibit R1, 68.
The Applicant first arrived in Australia on a student visa 15 July 2000,[2] and became a permanent resident of Australia on 23 July 2007.[3]
[2] Exhibit R1, 310.
[3] Exhibit R1, 311.
The Applicant’s wife, whom he married in 2007, is an Australian citizen. They have three minor children in Australia who are all Australian citizens and reside with her.[4]
[4] Applicants Statement of Facts, Issues and Contentions (ASFIC) 3.
The Applicant was granted the visa on 8 November 2013.[5]
[5] Exhibit R1, 311.
On 13 December 2018 the visa was mandatorily cancelled pursuant to s 501(3A) of the Act on the basis that he had a ‘substantial criminal record’[6] and was serving a sentence of imprisonment, on a full-time basis, at the Fulham Correctional Centre in Victoria, for an offence against a law in Australia.
[6] The Act s 501(7)(c) – provides that for the purposes of the character test a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
It is appropriate that I set out below the Applicant’s criminal history in Australia, and the sentences imposed upon him.
Criminal offending
The Applicant has a substantial criminal history dating back to 2004, comprising of the following:[7]
[7] Exhibit R1, 28, 36-8; Exhibit R2, 83-4, 86; Exhibit R2, 335; Exhibit R2, 472-5.

Date

Offences

Penalty and/or Sentence

14 June 2004

Traffic infringement notice for exceeding the speed limit by 40km/h or more but less than 45km/h.

The Applicant’s licence was suspended for a period of 6 months from 14 June 2004.

26 August 2014

The Applicant appeared in the Melbourne Magistrates Court on charges of:

(a)     Possess methylamphetamine;

(b)     Use methylamphetamine;

(c)     Fail to answer bail;

(d)     Unlicenced driving;

(e)     Use handheld telephone when driving; and

(f)      Careless driving

The Applicant received an aggregate fine of $5000.00 and did not receive a conviction.

5 November 2015

Traffic infringement notice for exceeding the speed limit by 25 km/h or more but less than 30 km/h.

The Applicant’s licence was suspended for one month from 5 November 2015

22 January 2016

The Applicant appeared in the Dandenong Magistrates Court on charges of:

(a)     possess methylamphetamine;

(b)     theft of a motor vehicle;

(c)     criminal damage (intent damage/destroy

(d)     recklessly cause injury; and

(e)     drive whilst authorisation suspended.

The Applicant was convicted and received a community correction order for 12 months and was ordered to perform 150 hours of unpaid community work.

The Applicant’s licence was also cancelled, and he was disqualified from driving in Victoria for a period of 6 months.

21 March 2016

The Applicant appeared in the Melbourne Magistrates court on charges of:

(a)     drive without ‘L’ plates displayed;

(b)     learner driver drive vehicle without experiences driver; and

(c)      refuse to provide a sample of oral fluid.

The Applicant was convicted and fined a total of $600.00.

The Applicant’s licence was also cancelled and he was disqualified from driving in Victoria for a period of 6 months from 21 March 2016.

5 September 2016

The Applicant appeared in the Dandenong Magistrates Court on charges of:

(a)     drive whilst disqualified (multiple charges);

(b)     exceed 100 speed by 35K less 45K;

(c)     produce for inspection non-Victorian license;

(d)     exceed 80 speed sign by 10K less 25K;

(e)     use hand held mobile in a moving vehicle; and

(f)      contravene community correction order.

The Applicant was convicted and received a community correction order for 12 months and was ordered to preform 100 hours of unpaid community work.

The Applicant’s licence was also cancelled and he was disqualified from driving in Victoria for a period of 12 months from 5 September 2016.

The breach of the Applicant’s existing community corrections order was also proven and varied.

21 August 2017

The Applicant appeared in the Melbourne Magistrates Court on charges of:

(a)     contravene community correction orders dated 5 September 2016 (two counts)

The breaches were proven and the Applicant received a community correction order for 12 months and was ordered to perform 50 hours of unpaid community work.

12 September 2018

The Applicant appeared in the County Court of Victoria at Melbourne on charges of:

(a)     CTH - attempt to possess marketable quantity of an imported border controlled drug/plant; and

(b)     Attempt to posses marketable quantity of border controlled drug.

The Applicant was convicted and sentenced to a term of 54-month’s imprisonment, with a total non-parole period of 30 months.

9 October 2018

The Applicant appeared in the Dandenong Magistrates Court on charges of:

(a)     Contravene community correction order (two counts);

(b)     Drive whilst disqualified;

(c)     Failing oral fluid drug test within 3 hours of driving; and

(d)     Exceeding 60kph speed sign by between 25kph and 35kph.

The Applicant was sentenced to an aggregate term of 3 months’ imprisonment for the driving offence, his licence was cancelled, and he was disqualified from driving in Victoria for a period of 6 months.

The contraventions of the CCOs were proven.

18 June 2020

The Applicant appeared in the Melbourne Magistrates Court on a charge of:

(a)     Default of payment of fines (totalling $717.00)

The Applicant was sentenced to a term of imprisonment of 5 days.

During a term of imprisonment at Fulham in May 2019, the Applicant was located ‘out of bounds’ and was penalised seven days early lock in.[8] Also whilst serving a term of imprisonment at Fulham, in June 2019, the Applicant pleaded guilty to a charge of possessing an ‘unauthorised article or substance’ following the discovery of two packages of tobacco in each of his socks.[9] He was fined $20.00 and lost his contact visits for two weeks.[10]
[8] Exhibit R2 469.
[9] Exhibit R2, 470-471.
[10] Ibid.
legislative framework
The issues before the Tribunal are:
(a)whether the Applicant passes the character test as defined under s 501(6) of the Act; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
(A) Does the applicant pass the character test?
The character test is set out in s 501(6) of the Act. It refers to a range of matters that the Minister or the Minister’s delegate may have regard to in deciding whether to refuse, cancel, or revoke the mandatory cancellation of a visa.
Relevantly, a person will not pass the character test if they have a ‘substantial criminal record’. The phrase ‘substantial criminal record’ is defined in s 501(7) of the Act and includes circumstances in which a person has been sentenced to a term of imprisonment of 12 months or more.
It is not disputed by the parties that the Applicant has been sentenced to a term of imprisonment for a period totalling more than 12 months. Accordingly, by operation of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test as a matter of law.[11]
[11] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
(B) is there another reason WHY THE DECISION TO CANCEL THE APPLICANT’S VISA SHOULD BE REVOKED?
Guidance is found in Direction No. 90 – Migration Act 1958 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).
It is common ground the Applicant fails the character test. As such, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the reviewable decision. The issue to be determined, therefore, is whether there is ‘another reason’ for revocation. This task was considered by the Full Court of the Australian Federal Court (FCAFC) in Viane:[12]
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
[12] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531.
dIRECTION 90
The Direction states that:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.[13]
[13] Direction [6]. See also Direction [4(1)] which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The Principles in Paragraph 5.2
Paragraph 5.2 of the Direction is designed to ‘provide a framework within which decision-makers should approach their task’ under s 501 or 501CA.
Summarised where appropriate, the principles are:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(b)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(c)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community);
(d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age; and
(e)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four Primary Considerations, and four Other Considerations which the Tribunal must be guided by in making my decision.
The Primary Considerations the Tribunal must take into account are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
The Other Considerations which, where relevant, the Tribunal must take into account include but are not limited to:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.[14]
[14] Direction [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(a)Information from independent and authoritative sources should be given appropriate weight;[15]
(b)Primary Considerations should ‘generally’ be given greater weight than Other Considerations;[16] and
(c)One or more Primary Considerations may outweigh other Primary Considerations.[17]
[15] Direction [7(1)].
[16] Direction [7(2)].
[17] Direction [7(3)].
The guidance in paragraph 7 of the Direction quoted above does not materially differ from the guidance which appeared in former directions. Colvin J said of the former Direction 65 that:
…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, 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 to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[18]
[18] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545 [23].
I now turn to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to have regard to the principle that the:
Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
Application of Factors in Paragraph 8.1.1(1) of the Direction
(a) The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   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 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
I have set out the Applicant’s criminal offending above. The Applicant acknowledged that he was sentenced for offending which related to the attempted importation of a marketable quantity of methamphetamine. The sentencing remarks of Her Honour Judge Fox of the County Court of Victoria (as her Honour then was), record that the pure drug weighed 234.8 grams.[19] The Applicant has also acknowledged family violence offending in the form of smashing the back window of a residence and punching his wife twice to the head whilst she was telephoning Victoria Police.[20] I discuss the family violence offending further below.
[19] DPP v Amadi & Anor [2018] VCC 1472 [5].
[20] Transcript P-25; ASFIC [7], [20]-[21].
In these circumstances I find that sub-paragraph (a) of paragraph 8.1.1(1) of the Direction militates in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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 197A of the Act, which prohibits escape from immigration detention.
The application of this sub-paragraph is not relevant to the Applicant in this case.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker to consider certain sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. I have referred to the relevant sentences above. I observe that the most recent sentence of some duration was the sentence of 54 months imprisonment[21] which, on any assessment, is significant. For completeness, it is important to record that the Applicant was not convicted in relation to the importation of drugs, rather attempting to possess a marketable quantity (as set out above).
[21] Exhibit R1, 37.
I find that sub-paragraph (c) of paragraph 8.1.1(1) of the Direction militates in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction directs a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
As I have referred above, the Applicant’s serious offending commenced in 2014. His most recent serious offending took place in 2017. I find that the Applicant’s offending has been frequent and, when considered overall, involves a trend of increasing seriousness, which enlivens the application of sub-paragraph (d) of paragraph 8.1.1(1) of the Direction.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to give consideration to the cumulative effect of repeated offending of the non-citizen.
I consider that the Applicant's repeated acts have had a cumulative effect, especially in the context of the considerable resources required to hold him responsible. This includes the costs borne by the broader community to provide the necessary police resources, and the further expense of the Courts, corrections and wider justice system.
I am of the view that the cumulative effect of the Applicant’s repeated offending enlivens the application of sub-paragraph (e) of paragraph 8.1.1(1) of the Direction in favour of a finding that the Applicant’s offending is of a very serious nature.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The application of this sub-paragraph is not relevant to the Applicant in this case.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to consider whether the non-citizen has re-offended since having been 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 (observing that the absence of such a warning is not considered to be in the non-citizen’s favour).
The application of this sub-paragraph is not relevant to the Applicant in this case.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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.
Paragraph 8.1.2(2) of the Direction provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)The nature of the harm to individuals or the Australian community should be the non-citizen engage in further criminal or other serious conduct;
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)Where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
(a) The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Paragraph 8.1.1(2)(a) of the Direction compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
The Applicant contends that he will abstain from using drugs in the future and not engage in further criminal or other serious conduct therefore causing no harm to individuals or the Australian community.[22]
[22] Transcript P-7-9.
The Respondent contends that, if the Applicant were to reoffend or engage in other serious conduct, the nature of the relevant harm is ‘plainly very serious’.[23]
[23] Respondent’s Statement of Facts, Issues and Contentions (RSFIC) 11[37].
The ’Final Report of the National Ice Taskforce’, outlines the impact of methylamphetamine in the community:
‘Unlike cannabis and heroin, ice [methamphetamine] is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.’[24]
[24] Final Report of the National Ice Taskforce (6 October 2015).
The ‘National Drug Strategy (2016–2026)’ itemises the impact of the unlawful trade in illicit drugs across various sectors of the community’s resources ranging from health, to social and economic harms:
‘Impacts can include:
· Health Harms such as:
·injury;
·chronic conditions and preventable diseases (including lung and other cancers; cardiovascular disease; liver cirrhosis);
·mental health problems; and
·road trauma.
· Social Harms including:
·violence and other crime;
·engagement with the criminal justice system more broadly;
·unhealthy childhood development and trauma;
·intergenerational trauma;
·contribution to domestic and family violence;
·child protection issues; and
·child/family wellbeing.
·Economic Harms associated with:
·healthcare and law enforcement costs;
·decreased productivity;
·associated criminal activity; and
·reinforcement of marginalisation and disadvantage.’[25]
[Emphasis in original.]
[25] Australian Government Department of Health, National Drug Strategy 2016–2026 (2015).
I consider that the Applicant’s lengthy history of driving offences is also relevant to this consideration. I observe that the Applicant’s offending in this regard includes unlicensed driving, driving whilst disqualified, refusing to provide a sample of oral fluid for a drug test, failing an oral fluid drug test within three hours of driving, exceeding the speed limit by 40 km an hour or more and exceeding 100 km an hour speed sign by between 35 km an hour and 45 km an hour.[26] Road trauma has already been referenced above and, in considering the relevant harm, I am mindful that road trauma often has an ongoing and profound effect not just on the individuals involved, but their families and often bystanders and first responders. Whilst the Applicant’s driving to date has not resulted in harm, it easily could in the future.
[26] Exhibit R1, 37-38.
I consider that there is little to be said against the contention that the nature of harm, in the event of the Applicant re-committing similar or identical unlawful conduct as set out above would, without question, involve at the very least physical and psychological harm, with a more than realistic possibility of such harm resulting in devastating consequences.
I observe that the terms of the Direction have direct application to the facts of the Applicant in this case. Put simply, having regard to the Applicant’s offending over a number of years, were that offending to be repeated its resulting consequences and harm may very well be so serious that any risk of similar conduct in the future is unacceptable.
I am of the view that reasonably minded members of the Australian community would regard the Applicant’s offending, committed over a period of several years as set out above, as so serious that they would refuse to accept any risk of recurrence.
(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct
As I have referred above, the Applicant contends that he will abstain from using drugs in the future and not engage in further criminal or other serious conduct.[27]
[27] Transcript P-7-9.
The Applicant asked the Tribunal to take into account that drugs, including ice, were available to him in prison, and continue to be available to him in immigration detention, albeit illegally of course, and to attach some weight to his asserted abstinence in these environments.[28] I accept the evidence that the Applicant has abstained from abusing drugs since his arrest in 2017.
[28] Ibid P-52-53.
I have had regard to the Applicant’s evidence concerning the positive mentoring role that he has sought whilst he has been removed from his family, which on his evidence includes teaching yoga, stress management and meditation to those around him.[29]
[29] Ibid P-54; ASFIC [49], [57], [88].
I have read and had regard to the sentencing remarks of Her Honour Judge Fox of the County Court of Victoria (and to which I have already referred above) including her encouraging remarks in relation to the Applicant completing his community corrections order.[30] I acknowledge her Honour’s positive assessment of the Applicant’s prospects of rehabilitation,[31] and I take this into account. However, I set out below why I do not share the same level of positivity in relation to the Applicant’s prospects of rehabilitation.
[30] DPP v Amadi & Anor [2018] VCC 1472.
[31] Ibid [69]-[70].
I acknowledge that the Applicant has made some efforts to rehabilitate himself, including through drug treatment and counselling.[32] I acknowledge the Applicant’s engagement with the Monash Health and Alcohol and other drugs and South East Consortium of Alcohol and Drug Services (SECADA) providers.[33] I also acknowledge that the Applicant completed a ‘dealing with anger’ program in 2021 and a program of instruction in relation to domestic abuse and violence awareness (with distinction) in the same year.[34] I observe that the Applicant has also successfully completed the ‘being a dad’ group program over seven sessions between 30 July 2019 and 10 September 2019 and the ‘Skating on Ice’ program on 19 February 2020.[35]
[32] ASFIC [22], [25], [39].
[33] Ibid [25].
[34] Ibid [51]; Ibid Attachment E ‘Certificate of Attendance – Dealing with Anger Sessions’.
[35] Ibid [46]; Exhibit R1, 144-145.
In his closing submissions the Applicant made reference to the counselling and drug treatment he has received from clinician Ashleigh Denver from Monash Health.[36] The Applicant claimed that this has allowed him to ‘identify behaviours, habits and thoughts that made me want to abuse drugs. I was able to understand why I felt and acted in a certain way and how those feelings and actions led to substance abuse’.[37]
[36] Transcript P-117.
[37] Ibid.
I accept the Applicant’s oral testimony that he was unable to complete the Men’s Behaviour Program due to the onset of the COVID-19 pandemic.[38]
[38] Ibid P-56.
The Applicant relied on the report of Mr Fulvio Di Prinzo, registered psychologist who assessed the Applicant at the initial revocation stage.[39] Mr Di Prinzo considered that the Applicant posed a low risk of reoffending and concluded that the Applicant ‘seems to have fully accepted his failures and has not sought to explain or justify the reasons for his substance abuse’.[40]
[39] ASFIC [32]-[33].
[40] Ibid [33].
I am concerned however as to whether the Applicant was truthful in his interactions with Mr Di Prinzo. For instance, the Applicant’s wife told the Tribunal that the Applicant had a serious problem with methamphetamine dating as far back to 2008 and that this was, at least in part, a central motivating factor in their decision to go and live in Malaysia at that time.[41] The Applicant’s drug use around this time is corroborated by police records which show that the Applicant made admissions relating to the possession and use of methamphetamine in September 2008.[42] However, in his report Mr Di Prinzo observed that the Applicant was introduced to drugs by a colleague in 2013-14.[43] In his oral testimony before the Tribunal, the Applicant also initially said that he was introduced to drugs by a colleague whilst working in real estate and door-to-door prospecting in 2013-14.[44] The Applicant’s Statement of Facts Issues and Contentions (SFIC) also states ‘the applicant was introduced to the drug ice through a colleague in around 2014’.[45]
[41] Transcript P-67-68.
[42] Exhibit R2, 496.
[43] Exhibit R1, 124.
[44] Transcript P-14.
[45] ASFIC [11].
I refer also to the summons material obtained from Corrections Victoria and, specifically, an assessment report dated 25 October 2017 which states that the Applicant ‘began experimenting with amphetamines at 18 years of age while at university” and “tried cannabis for the first time at 16 years of age’.[46] This report states that the Applicant’s drug use increased while he was attending university in England and became ‘daily upon his arrival in Australia’.[47]
[46] Exhibit R2, 444.
[47] Ibid.
In her oral evidence, the Applicant’s wife told the Tribunal that she and the Applicant returned to Australia in 2013 and the Applicant abstained from drug use for about a year but that in 2014 he returned to using drugs and spiralled until his arrest in January 2017.[48] I observe that the Respondent was more accurate in this respect and highlighted that the Applicant appeared before a court only nine months after returning to Australia.[49]
[48] Transcript P-68.
[49] Respondent’s Written Closing Submissions, 13.
For completeness, I acknowledge that the Applicant did return to the family home following his arrest and by all accounts presented to the sentencing judge for sentencing drug-free. Whilst the Applicant ought to be commended for this, I am observe that the Applicant’s drug usage spans two decades and, as such, it is not surprising that there would be times such as this where the Applicant refrains from usage for a period.
I acknowledge the Applicant’s claimed insight into his drug use and criminal offending.[50] However, I consider that the Applicant’s refusal to be honest, including initially before this Tribunal, about his long-standing drug addiction (as set out above) undermines his assertions of having insight into his drug use and criminal offending.
[50] ASFIC [27], [53]; Exhibit R1, 86, 128.
I observe that in her psychological report dated 26 June 2018 a separate psychologist, Ms Pamela Matthews, observed that the Applicant does not suffer from mental health issues.[51] I accept the Applicant’s oral testimony however that he experiences anxiety ‘just like anyone else’.[52]
[51] Exhibit R1, 143.
[52] Transcript P-17.
I observe that the Applicant is a tertiary educated individual who speaks several languages.[53] I suspect that his articulate and confident demeanour may go some way to explain how the Applicant has previously been assessed by Corrections Victoria as a low risk of reoffending.[54] I observe that the Applicant reoffended following this Corrections Victoria assessment, nonetheless.
[53] Ibid P-12.
[54] Community Correction Order Assessment Outcome Report to determine the applicant's suitability for a community corrections order dated 22 January 2016
In his oral testimony, the Applicant expressed a strong desire to turn his life around, obtain employment and resume his relationship with his wife and children in person. I observe that the Applicant has previously been engaged in full-time employment whilst using drugs and for this reason I do not consider employment a strong protective factor likely to reduce the likelihood of the Applicant engaging in further criminal or other serious conduct. I observe that his relationship with his wife commenced in 2000 and, but for brief periods of separation, is said to have been mostly ongoing and, again, I do not consider this a strong protective factor likely to reduce the likelihood of the Applicant engaging in further criminal or other serious conduct. I discuss the Applicant’s relationship with his children below.
Having considered all the material before me, I consider that if the Applicant were released into the community, with wider access to drugs and increased stressors, were he to relapse into abusing drugs, he would in all likelihood engage in further criminal or other serious conduct.

In all the circumstances I consider that, notwithstanding the rehabilitative benefit the Applicant may have received to date, it falls short of the level necessary for the Tribunal to conclude that he would be unlikely to engage in further criminal or other serious conduct.
Conclusion: Primary Consideration 1
I find that:
(a)The nature of the Applicant’s offending is very serious;
(b)Were the Applicant to reoffend in a similar way, the nature of the resulting harm would involve very serious physical and/or psychological harm to the Australian community, quite conceivably, to a devastating level; and
(c)In terms of risk of recidivism, there is a reasonable likelihood that he will engage in further very serious offending or other serious conduct if returned to the Australian community.
In consideration of all the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration 1 weighs very strongly in favour of non-revocation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Paragraph 8.2(1) of the Direction compels a decision-maker to make a determination about any family violence committed by the non-citizen.
In November 2015, an Intervention Order was made against the Applicant, prohibiting him from engaging in family violence against his wife and children.[55]
[55] Exhibit R2, 335
The Respondent notes in its SFIC, relevant to this consideration, that there was an incident which involved the Applicant punching his wife twice in the head, whilst in the presence of their children, causing a split lip and swelling to her jaw.[56]
[56] RSFIC 15
Summonsed documents from Victoria Police indicate that the attending police members had ‘serious concerns for the safety and welfare of the [victim] and the three children’.[57]
[57] Exhibit R2, 493.
The Tribunal notes that a Final Intervention Order prohibiting the Applicant from engaging in further acts of domestic violence against his wife and children was subsequently issued.[58]
[58] Ibid 495; RSFIC 15.
I observe that the Applicant denies engaging in repeated acts of family violence.[59]
[59] ASFIC [37].
However, the Respondent has provided the Tribunal with summonsed documents from Victoria Police records involving the Applicant, his wife and his children.[60] They record the following:
(a)On 22 June 2016, Victoria Police received a report that the Applicant physically assaulted one of his minor children;[61] and
(b)On or around June or July 2016, Victoria Police received a report that the Applicant was attending a specified address and committing family violence towards his wife.[62]
[60] Exhibit R2, 493, 495, and 498.
[61] Ibid 498.
[62] Ibid 495.
I find that there is sufficient material before the Tribunal to conclude that this consideration weighs very strongly against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs very strongly against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN
Paragraph 8.3 of the Direction provides, in part:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction continues to outline the factors that a

decision-maker must consider when determining the best interests of a child affected by the decision:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Identification of Relevant Children
It is first necessary to identify the children actually or possibly relevant to this proceeding.
The relevant children are:
(a)the Applicant’s daughter aged 14;
(b)the Applicant’s son aged 10;
(c)the Applicant’s daughter aged 7; and
(d)the two children of Mr Maclean, aged 9 and 7.
For completeness, I observe the Applicant’s Australian resident sister, Shahrean Joseph, provided a statutory declaration which makes reference to her having two minor children who live with her in Australia.[63] The Respondent’s SFIC also mentions them but provides no further information.[64] Whilst this limited information means that I am constrained in relation to the findings that I may make, I consider that the absence of more fulsome information concerning them and the precise nature of their relationship with their uncle should not mean that I do not have regard to them. I have considered them as the Direction requires to the extent possible.
[63] Statutory Declaration signed by Shahrean Joseph dated 3 December 2021.
[64] RSFIC 22.
Consideration of Factors
Sub-paragraph (a) of paragraph 8.3(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where ‘(1) the relationship is non-parental, (2) there is no existing relationship, (3) there have been long periods of absence, or (4) there has been limited meaningful contact (including whether an existing Court order restricts contact)’.
At the outset, I observe that the restrictions on visitations to detainees at immigration detention facilities as a result of the COVID-19 pandemic must not be held against the Applicant.
The evidence is that the Applicant has been active in the lives of his children since their birth, and that other than for a brief period leading up to his offending and for the period of his incarceration and detention, he has lived with his children and they share a close bond. I accept this. I further accept that, because of the COVID-19 pandemic and associated restrictions, the Applicant and his children maintain contact where possible by telephone.
Mr Maclean is a family support worker with the Queensland Government who told the Tribunal that he has been friends with the Applicant since they attended Monash University in Victoria together.[65] Mr Maclean said that his own children have had a relationship with the Applicant and that his children call the Applicant ‘uncle’.[66] In his written character reference dated 25 September 2019, Mr Maclean claims that the Applicant has ‘always been a thoughtful, caring and supportive parent figure’ to his children.[67] In his oral testimony, Mr Maclean said that he has taken his own children to visit the Applicant in prison.[68]
[65] Transcript P-111.
[66] Ibid P-112.
[67] Exhibit R1, 151.
[68] Transcript P-112.
With reference to his own children, I am satisfied that the Applicant’s relationship with them has been a parental one. There have been some periods of physical absence of the Applicant from his children’s lives and, notwithstanding these periods, there has been meaningful contact of a clearly parental nature between him and his children for the significant majority of their lives thus far. Significantly, the relationship has withstood the circumstances of the Applicant abusing drugs and offending, him engaging in family violence, and the aftermath of the Applicant being arrested, sentenced, imprisoned and detained in immigration detention.
With reference to Mr Maclean’s children, I am of the view that while not a parental relationship, the relationship between these children and the Applicant has been close over the course of their lives. I am of the view that whilst the Applicant has been physically absent more recently, this is not a sufficiently great period to have an ongoing impact or such that there is no existing relationship. I am satisfied there has been meaningful contact of the kind of relationship described by Mr Maclean between the Applicant and his children.
I am mindful that less weight should generally be given where the relationship is non-parental as is no doubt the case between the Applicant and Mr Maclean’s children. Logically, the weight allocable for his relationship with his biological children must exceed that allocable for Mr Maclean’s children.
I am of the view that a strong, but not determinative, level of weight is allocable to this sub-paragraph (a) in favour of a finding that it is in the best interests of those children for the Applicant’s visa status be restored to him.
Sub-paragraph (b) of paragraph 8.3(4) requires a decision-maker to consider the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.
In relation to the Applicant’s children, it is likely that the Applicant will play a parental role in the future. This is significant due to the prospect of them being permanently separated from him. How positive the Applicant’s parental role will be would depend upon whether the Applicant relapses into drugs and reoffending. The same can be said in relation to Mr Maclean’s children, acknowledging that whilst they may look up to the Applicant and refer him as ‘uncle’, he is not their father nor their uncle, and their parenting is the responsibility of their biological parents, as Mr Maclean acknowledged.[69]
[69] Ibid P-114.
Taking into account my findings about the respective factors relating to each of the children, I am of the view that this sub-paragraph (b) militates in favour of the allocation of a strong level of weight in favour of setting aside the non-revocation decision.
Sub-paragraph (c) requires me to examine the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child.
At the outset, I observe that the Applicant was arrested in January 2017 by the Australian Federal Police in the presence of his children.[70]
[70] Ibid P-74.
There is, however, no direct evidence that the impact of the Applicant’s prior conduct has caused any detrimental effect on the wellbeing of any of the children identified above. Notwithstanding this, I consider that the Applicant’s criminal offending and subsequent periods of separation from his children cannot have been beneficial to them. The same can be said in relation to Mr Maclean’s children, acknowledging that they do not rely upon the Applicant in the same way as the Applicant’s children and are now located in Queensland.
It is not possible to find, with any certainty, how any future offending by the Applicant will impact the Applicant’s children or Mr Maclean’s children. One does not even know the circumstances of any such future offending. Therefore, no finding about any future adverse impact can be reached at this stage.
Accordingly, this sub-paragraph (c), at best, can only attract neutral weight in favour of the Applicant having his visa status restored to him.
Sub-paragraph (d) requires me to consider the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.
The Applicant was unclear as to whether his children would be actually permitted to travel from Australia to visit him abroad and for how long.[71] The Applicant gave evidence that he and his wife had not wanted to face this prospect.[72]
[71] Ibid P-42, 43.
[72] Ibid.
I accept that the Applicant and his children face the prospect of being permanently separated, at least until the Applicant’s children are 18 years of age. Whether Mr Maclean and his partner would choose to permit their children to visit the Applicant abroad is a matter for them.
The contemporary reality is that were the Applicant to be removed to Malaysia, he would be able to maintain non-face-to-face communications with his children and Mr Maclean’s children using electronic means. I accept that communications by electronic and other non-personal platforms are not the same thing as inter-personal contact.
In these circumstances, it is appropriate that a strong level of weight should be allocated to this sub-paragraph (d) in favour of a finding that it is in the best interests of the relevant children for the Applicant’s visa status to be restored to him.
Sub-paragraph (e) asks whether there are other persons who already fulfil a parental role in relation to the children.
The material is clear that the Applicant’s children are primarily cared for by the Applicant’s wife. The Applicant’s wife told the Tribunal that her friend, Mr Steve Harrison, also fulfils a parental like role in relation to the children.[73]
[73] Ibid P-66.
In these circumstances, this sub-paragraph (e), at best, can only attract neutral weight in favour of the Applicant having his visa status restored to him.
Sub-paragraph (f) requires me to consider any known views of the children (having regard to their age and maturity).
I have had regard to the Applicant’s evidence in respect of the views of each of the relevant children. As I indicated above, I had the benefit of hearing evidence in relation to this sub-paragraph (f) from the Applicant’s wife, Mr Maclean and the Applicant’s eldest daughter. I accept that the Applicant’s son has been struggling in his father’s absence.[74] I understand each of the relevant children want the Applicant to physically return to their lives.
[74] Ibid P-40, 91.
In these circumstances, it is safe to allocate a strong level of weight to this sub-paragraph (f) in favour of the Applicant for the restoration of his visa status to remain in Australia.
Sub-paragraph (g) compels the decision-maker to look for and analyse evidence that the children have been or are at risk of being subject to or exposed to family violence perpetrated by the non-citizen or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually, or mentally.
I have referred to the Applicant’s history of domestic violence above, including in so far it relates to violence having occurred in the presence of the Applicant’s children.
In these circumstances, this sub-paragraph (g), weighs against the Applicant having his visa status restored to him.
Sub-paragraph (h) looks for evidence that the children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
I have referred to the Applicant’s history of domestic violence above. I observe that the Applicant is said to have assaulted his eldest daughter, who was aged eight years of age at the time.[75]
[75] Exhibit R2, 498.
In these circumstances, this sub-paragraph (h), weighs against the Applicant having his visa status restored to him.
Conclusion: Primary Consideration 3
I have had regard to the evidence and have sought, where I have thought appropriate and relevant, to apply my findings about the evidence towards the allocation of weight to each of the relevant sub-paragraphs to paragraph 8.3 of the Direction.
I am of the view, and I find that, the cumulative best interests of the relevant minor children in Australia weigh strongly, but not determinatively, in favour of revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[76] The Direction further states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.[77]
[76] Direction, [8.4(3)].
[77] Ibid [8.4(4)] – paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.

In assessing the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides two separate propositions which are worth examining separately. The first is that ‘the Australian community expects non-citizens to obey Australian laws while in Australia’. The second proposition is that:
Where a non-citizen has engaged in serious conduct in breach of the community’s expectations, 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.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction states that a:
visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
I note, based on the principles in paragraph 5.2 of the Direction, that:
(a)The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[78]
(b)Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life;[79] and
(c)The nature of a 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 a visa outcome adverse to the non-citizen.[80]
[78] Direction, [5.2(4)].
[79] Ibid.
[80] Ibid, [5.2(5)].
The Applicant contends that the Australian community would expect someone who has sought to rehabilitate himself to be given a second chance.[81] To simply accept this proposition as put would be contrary to the Full Court’s decision in FYBR v Minister for Home Affairs [2019] FCAFC 185 and the ‘deeming’ effect of the Government’s view.
[81] ASFIC [93].
The Respondent contends that the Australian community would expect that the Applicant should not hold a visa on account of his past offending in addition to the risk of further offending and infliction of harm.[82]
Analysis – Allocation of Weight to this Primary Consideration 4
[82] RSFIC 18.
I refer to my other observations above, namely that the Applicant has already faced court in relation to serious offending over a period of a number of years (and for which he has been sentenced to, and served, a lengthy period of imprisonment). I consider that this amounts to conduct in breach of the Australian community’s expectation that non-citizens in Australia will obey the law. Therefore, I consider that by virtue of paragraph 8.4(1) of the Direction, the Australian community as a ‘norm’ would expect the Government to remove the Applicant.
The next question I must consider is whether there are any factors which might vitiate or, perhaps more conservatively, counteract the Australian community’s expectation that the Applicant cease to hold a visa.
Other than matters that are properly considered elsewhere in these reasons, there are no other factors that counteract the expectation of the Australian community.
Overall, I consider that this is a case that engages the principle in paragraph 5.2(5) of the Direction:
The nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Conclusion: Primary Consideration 4
In consideration of all the evidence and each of the relevant factors contained in the Direction, I find that this Primary Consideration weighs very strongly in favour of non-revocation.
OTHER CONSIDERATIONS OF THE DIRECTION
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International Non-Refoulement Obligations
Paragraph 9.1 of the Direction sets out that a decision-maker should weigh any non-refoulement obligations that Australia owed in respect of the Applicant against the Applicant’s criminal offending.
This consideration is not relevant to the Applicant in this matter.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account
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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
I will address each of the three main components of this Other Consideration in turn.
First, it is necessary to consider the Applicant’s age and state of health.[83]
[83] Direction, [9.2(1)(a)].
As referred to above, the Applicant is 42 years of age.
In his oral evidence, the Applicant said that he has a torn anterior cruciate ligament in his left knee.[84] I accept this.
[84] Transcript P-11.
I accept that the Applicant experiences anxiety as he described.[85]
[85] Ibid P-57.
In cross examination, the Applicant accepted that he does not take any medication and is otherwise healthy.[86]
[86] Ibid P-11.
Notwithstanding his health issues as described above, I consider that the Applicant’s overall physical abilities should allow him to obtain employment.
Second, it is necessary to consider whether there are any ‘substantial language or cultural barriers’’[87] to the Applicant returning to Malaysia. The Respondent highlighted that the Applicant grew up in Malaysia until 20 years of age and is fluent in the Malay language.[88] Some of his family continue to live there (see below).
[87] Direction [9.2(1)(b)].
[88] RSFIC 19; Transcript P-12.
Third, it is necessary to consider any social, medical and/or economic support available to the Applicant in Malaysia.
In cross examination the Applicant accepted that his family in Malaysia would be considered affluent.[89] He told the Tribunal how he grew up with domestic servants, attended a superior school and obtained entry to the Cardiff Law School in the United Kingdom following his completion of high school.[90]
[89] Transcript P-11.
[90] Ibid P-11, 12.
I observe that the Applicant’s mother, brother, three uncles and three cousins continue to reside in Malaysia.[91] I accept the Applicant’s evidence that his mother is supportive of him and that he is now only in contact with his mother and brother in Malaysia.[92]
[91] Ibid P-10.
[92] Ibid P-10, 11.
I observe that in cross examination the Applicant accepted that he would be able to live comfortably in Malaysia.[93]
[93] Ibid P-12.
As a citizen of Malaysia, I consider that the Applicant would be able to obtain medical treatment in the same way as any other citizen of Malaysia.
I consider that any difficulties the Applicant would face in re-establishing himself in Malaysia would be temporary.
In all the circumstances, I consider that this factor weighs only slightly in favour of revocation.
(c) Impact on Victims
Paragraph 9.3(1) of the Direction states that:
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.
The Applicant contends that his wife and children, who were each the victims of domestic violence committed by him, will suffer emotional, practical and financial hardship were he to be removed from Australia.[94] I accept this is the case.
[94] ASFIC [82].
In relation to this consideration however, I adopt the approach of Member Bellamy in JSMJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4183 at [223] to [226] [bolded for emphasis]:
223. It appears that the pivotal factor in PGDX was the Court’s finding that the impact of a non-revocation decision on PGDX’s ex-wife (as opposed to her child) was not taken into account at all. That fact sets it apart from Bale and XXBN where the impact on the victims was taken into account, just not under the heading of “Impact on Victims”. I see no reason why, in the present case, Mr J’s interests should be taken into account twice merely because he comes within the purview of two Other Considerations.
224. There is no evidence that Mr J has an interest in the outcome as a victim, separate to his interest as the Applicant’s brother. An example of a separate interests might be where a family member/victim’s spiritual beliefs compel them to forgive and seek to assist all who offend against them. But that is not the case here. Mr J is standing by the Applicant because they are brothers. As the Respondent in the present case pointed out, there is nothing unusual about a victim of domestic violence standing by the perpetrator. Nor is this a case where Mr J is the sole victim and the only person potentially at risk of further offending, which could potentially give his interests greater importance in the evaluative process. There are several victims and the community in general is at risk of further violent offending.
225. I do not think it appropriate to take a regimented, formulaic approach and take Mr J’s interests into account repetitiously. Attributing appropriate agency to Mr J requires me to take into account evidence about the impact of a non-revocation decision on him, cognisant of the fact that he is a family member and a victim of the Applicant’s offending. I shall do that when I consider the impact of a non-revocation decision on each member of the Applicant’s family of origin.
226. I apply the same reasoning to Ms E who is also a victim of the Applicant’s offending. While she is no longer the Applicant’s partner, she is the mother of his child and I will address the impact on her under Other Consideration (d).
I therefore do not attach any weight to this Other Consideration (c).
(d) Links to the Australian community
Paragraph 9.4 of the Direction requires that decision-makers must have regard to the following two factors:
(1)The strength, nature and duration of ties to Australia;[95] and
(2)The impact on Australian business interests.[96]
[95] Direction [9.4.1].
[96] Direction [9.4.2].
9.4.1. Strength, Nature and Duration of Ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s ‘immediate family’ where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to have regard to the strength, nature and duration of any family or social links the Applicant may have with people who have indefinite right to remain in Australia.
At the outset, the Applicant made clear that he understood that a non-revocation decision would result in his permanent exclusion from Australia. This is not lost on me as the decision-maker. Indeed, I accept that the Applicant and the Applicant’s immediate family would be devastated by the Applicant being permanently excluded from Australia.
I accept that the Applicant has resided in Australia for over 21 years.
I accept that the Applicant has a history of both study, friendship and employment in Australia. Mr Maclean spoke to the friendship that he and his family have developed with the Applicant since their university days, beginning more than 20 years ago. Mr Wilkins and Mr Lyttle both spoke of employing the Applicant more recently.
Further, I accept that the Applicant was employed with employers such Connect Now, RACV, and the Eview group prior to his incarceration and would have developed the usual ties that an employee ordinarily develops through such employment.
I accept that the Applicant was previously in a relationship with a fellow drug user by the name of Alex, and I observe that that relationship has now ceased.[97]
[97] Exhibit R2, 409; Transcript P-48.
I accept the Applicant’s oral testimony that he has developed various relationships through his previous work as a real estate agent.[98]
[98] Transcript P-52.
I accept that the Applicant has developed associations with other persons in prison and detention, evidenced by his involvement in yoga, stress management and like activities.
I have referred above that the Applicant’s Australian resident sister Shahrean Joseph provided a statutory declaration which I have read and had regard to.[99]
[99] Statutory Declaration signed by Shahrean Joseph dated 3 December 2021.
I accept that the Applicant also has a male cousin who continues to reside Australia and who the Applicant is in contact with.[100]
[100] Transcript P-10.
Overall, I find that the Applicant’s ties to Australia weigh moderately in favour of revocation.
9.4.2 Impact on Australian Business Interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia, with particular reference to any impact his removal may have on ‘Australian business interests’. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can ‘generally only’ be allocated in this instance where a revocation decision ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
Therefore, this consideration is not relevant to the Applicant in this case.
Weight allocable to Other Consideration 4: links to the Australian community
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revocation, they are outweighed by Primary Considerations 1, 2 and 4, each of which weigh in favour of non-revocation. The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:
(a)International non-refoulement obligations: neutral;
(b)Extent of impediments if removed: slight weight in favour of revocation;
(c)Impact on victims: neutral; and
(d)Links to the Australian community: moderate weight in favour of revocation.
CONCLUSION
I find as follows:
(a) Primary Consideration 1: weighs very strongly in favour of non-revocation;
(b) Primary Consideration 2: weighs very strongly in favour of non-revocation;
(c) Primary Consideration 3: weighs strongly, but not determinatively, in favour of revocation;
(d) Primary Consideration 4: weighs strongly in favour of non-revocation;
(e) The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal does not consider that the totality of the weight attributable to the relevant Other Considerations outweigh the weight that it has attributed to the Primary Considerations as stated above.
Consequently, I do not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 182 (one hundred and eighty two) paragraphs are a true copy of the reasons for the decision herein of Senior Member P.Q. Wood

........................................................................
Associate
Dated: 3 March 2022

Date of hearing: 19 and 20 January 2022

Applicant: Self-Represented

Advocate/Counsel for the Respondent:

Mr Donaldson

Solicitors for the Respondent: Clayton Utz
EXHIBIT REGISTER

File No 2021/8501
Between Mohamed Merican (Applicant)
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Respondent)

Heard on 19 and 20 January 2022
Before Senior Member P. Q. Wood

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF LODGEMENT

R1

Section 501G ‘G’ Documents

Respondent

24 November 2021

R2

Summons Material

Respondent

21 December 2021

R3

Bundle of Material

Respondent

11 January 2022

R4

Statutory Statement by Shane Wilkins – undated

Applicant

11 January 2022

R5

Additional Material

Respondent

20 January 2022

[2022] AATA 404

3 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Date	Offences	Penalty and/or Sentence
14 June 2004	Traffic infringement notice for exceeding the speed limit by 40km/h or more but less than 45km/h.	The Applicant’s licence was suspended for a period of 6 months from 14 June 2004.
26 August 2014	The Applicant appeared in the Melbourne Magistrates Court on charges of: (a) Possess methylamphetamine; (b) Use methylamphetamine; (c) Fail to answer bail; (d) Unlicenced driving; (e) Use handheld telephone when driving; and (f) Careless driving	The Applicant received an aggregate fine of $5000.00 and did not receive a conviction.
5 November 2015	Traffic infringement notice for exceeding the speed limit by 25 km/h or more but less than 30 km/h.	The Applicant’s licence was suspended for one month from 5 November 2015
22 January 2016	The Applicant appeared in the Dandenong Magistrates Court on charges of: (a) possess methylamphetamine; (b) theft of a motor vehicle; (c) criminal damage (intent damage/destroy (d) recklessly cause injury; and (e) drive whilst authorisation suspended.	The Applicant was convicted and received a community correction order for 12 months and was ordered to perform 150 hours of unpaid community work. The Applicant’s licence was also cancelled, and he was disqualified from driving in Victoria for a period of 6 months.
21 March 2016	The Applicant appeared in the Melbourne Magistrates court on charges of: (a) drive without ‘L’ plates displayed; (b) learner driver drive vehicle without experiences driver; and (c) refuse to provide a sample of oral fluid.	The Applicant was convicted and fined a total of $600.00. The Applicant’s licence was also cancelled and he was disqualified from driving in Victoria for a period of 6 months from 21 March 2016.
5 September 2016	The Applicant appeared in the Dandenong Magistrates Court on charges of: (a) drive whilst disqualified (multiple charges); (b) exceed 100 speed by 35K less 45K; (c) produce for inspection non-Victorian license; (d) exceed 80 speed sign by 10K less 25K; (e) use hand held mobile in a moving vehicle; and (f) contravene community correction order.	The Applicant was convicted and received a community correction order for 12 months and was ordered to preform 100 hours of unpaid community work. The Applicant’s licence was also cancelled and he was disqualified from driving in Victoria for a period of 12 months from 5 September 2016. The breach of the Applicant’s existing community corrections order was also proven and varied.
21 August 2017	The Applicant appeared in the Melbourne Magistrates Court on charges of: (a) contravene community correction orders dated 5 September 2016 (two counts)	The breaches were proven and the Applicant received a community correction order for 12 months and was ordered to perform 50 hours of unpaid community work.
12 September 2018	The Applicant appeared in the County Court of Victoria at Melbourne on charges of: (a) CTH - attempt to possess marketable quantity of an imported border controlled drug/plant; and (b) Attempt to posses marketable quantity of border controlled drug.	The Applicant was convicted and sentenced to a term of 54-month’s imprisonment, with a total non-parole period of 30 months.
9 October 2018	The Applicant appeared in the Dandenong Magistrates Court on charges of: (a) Contravene community correction order (two counts); (b) Drive whilst disqualified; (c) Failing oral fluid drug test within 3 hours of driving; and (d) Exceeding 60kph speed sign by between 25kph and 35kph.	The Applicant was sentenced to an aggregate term of 3 months’ imprisonment for the driving offence, his licence was cancelled, and he was disqualified from driving in Victoria for a period of 6 months. The contraventions of the CCOs were proven.
18 June 2020	The Applicant appeared in the Melbourne Magistrates Court on a charge of: (a) Default of payment of fines (totalling $717.00)	The Applicant was sentenced to a term of imprisonment of 5 days.

Date of hearing:	19 and 20 January 2022
Applicant:	Self-Represented
Advocate/Counsel for the Respondent:	Mr Donaldson
Solicitors for the Respondent:	Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF LODGEMENT
R1	Section 501G ‘G’ Documents	Respondent	24 November 2021
R2	Summons Material	Respondent	21 December 2021
R3	Bundle of Material	Respondent	11 January 2022
R4	Statutory Statement by Shane Wilkins – undated	Applicant	11 January 2022
R5	Additional Material	Respondent	20 January 2022