Misi and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

Misi and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 4140 (26 October 2022)
Division:GENERAL DIVISION
File Number(s): 2022/6553
Re:Maea Misi
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Mr S Evans, Member
Date:26 October 2022
Date of written reasons: 5 December 2022
Place:Sydney

The decision of a delegate of the Respondent dated 4 August 2022 not to revoke the mandatory cancellation of the Applicant’s visa, is set aside. In substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.
...............[Sgd].........................................................
Mr S Evans, Member
Catchwords
MIGRATION – Non-revocation of mandatory cancellation – Class TY Subclass 444 Special Category (Temporary) Visa – where the Applicant does not pass the character test by virtue of his “substantial criminal history” – whether there is “another reason” to revoke the mandatory cancellation – consideration of Ministerial Direction 90 – allegations of family violence from untested police reports –evidence does not rise to level to contemplated in Direction 90 – consideration not engaged - interests of minor children – impediments to removal - decision under review set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594
QDQY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
QDQY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 82
Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4309
Secondary Materials
Direction 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mr S Evans, Member
5 December 2022

Maea Misi (the Applicant) seeks review of a decision dated 4 August 2022 of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of his Class YT Subclass 444 Special Category (Temporary) visa (the visa) pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).
For the reasons which follow, the reviewable decision was set aside and substituted on 26 October 2022.
introduction
The Applicant is a 41 year-old citizen of New Zealand who immigrated to Australia with his family in 1989 aged 8.[1] His mother and siblings also currently reside in Australia.[2]
[1] G14/72
[2] G14/78
The Applicant and his wife, who I will refer to as PC, have been together since 1999 and were married in 2016.[3] They have 4 children together.
[3] G8/119
On 2 December 2016 the Applicant was sentenced to a term of imprisonment of 5 years and 3 months by the Downing Centre District Court having been convicted of Robbery armed with offensive weapon – SI.[4]
[4] G6/33
On 7 February 2019 the Applicant was issued with a notice that his visa had been cancelled under subsection 501(3A) of the Act (the mandatory cancellation decision) as he did not pass the character test due to having a ‘substantial criminal record’ as defined by subsection 501(6)(a).[5] Subsection 501(7)(c) provides a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
[5] G36/190
On 25 March 2109 the Applicant sought revocation of the mandatory cancellation decision. Following the Federal Court decision in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[6] and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[7] the Applicant was reissued the notice of cancellation by email. On 4 August 2022 a delegate of the Minister decided not to revoke the mandatory cancellation of the visa (the non-revocation decision).[8] The Applicant was informed of the decision on the same day.
[6] [2021] FCAFC 173
[7] [2021] FCAFC 174
[8] G2/7
On 12 August 2022 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the non-revocation decision.[9]
[9] G1/1
issue to be determined
The issue to be determined is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(a)the Applicant passes the character test; or
(b)there is another reason why the original decision should be revoked under subsection 501CA(4) of the Act having regard to the considerations prescribed by Direction 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
It is not in dispute that the Applicant does not pass the character test owing to the operation of subsection 501(6)(a) having been sentenced to a term of imprisonment of 5 years and 3 months on 2 December 2016.
As the Applicant does not pass the character test, the sole issue for determination by the Tribunal is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
RELEVANT LAW AND MINISTERIAL DIRECTION NO. 90
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the ‘character test’.
Subsection 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Subsection 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subsection 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 90).
Paragraph 5.2 of Direction 90 provides principles which I have considered when determining whether to revoke the mandatory cancellation under section 501 of the Act. It relevantly provides:
(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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) 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.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be considered secondary considerations as in certain circumstances other considerations may outweigh primary considerations.[10]
[10] Suleiman and Minister for Immigration and Border Protection [2018] FCA 594, [23] per Colvin J
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)family violence committed by the non-citizen;
(3)best interests of minor children in Australia affected by the decision; and
(4)expectations of the Australian Community.
The other considerations set out in Direction 90 which must be taken into account where relevant include but are not limited to:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community.
evidence
Hearing
The matter was initially listed for hearing on 10 and 11 October 2022. At the beginning of the first day of the hearing the Respondent indicated that the issue of whether the Applicant had engaged in family violence was a relevant consideration. Counsel for the Applicant objected to the contention that family violence was a relevant consideration and argued the Applicant would be disadvantaged given the Respondent’s Statement of Facts, Issues and Contentions (SoFIC) dated 21 September 2022 stated that the primary consideration of family violence committed by the non-citizen ‘does not arise on the material’.[11]
[11] Respondent’s SoFIC dated 21 September 2022, [40]
The Applicant argued that raising this consideration on the day of the hearing would prejudice the Applicant as he would be deprived of an opportunity to examine the evidence presented in the context of the family violence consideration. Further, should the hearing proceed as scheduled, he would be unable to present any additional information or evidence relating to family violence owing to the operation of subsection 500(6H) and (6J) of the Act. These provisions prohibit the Tribunal having regard to information presented in support of a person’s case unless it was set out in a written statement and given to the Respondent at least 2 business days before the Tribunal holds a hearing.
In opposing an adjournment, the Respondent submitted that the evidence of the Applicant having engaged in family violence was provided as part of the tender bundle lodged on 21 September 2022. As such, the Applicant had ample opportunity to consider the material, provide additional evidence and to make submissions.
In light of the Respondent having expressly stated in the SoFIC that family violence does not arise on the material, the hearing was adjourned until 17 October 2022. The adjournment afforded the Applicant an opportunity to re-consider the evidence and to make submissions without being limited by the operation of subsections 500(6H) and (6J). The Applicant subsequently submitted a statement in reply regarding the operation of paragraph 8.2 of Direction 90 on 12 October 2022. A statement from the Applicant, and the alleged victim of the family violence PC, were accepted into evidence.
The Applicant’s evidence
In his initial application for revocation of the cancellation decision the Applicant wrote that Australia has been his home ‘as long as he had known’. Since arriving in Australia he has not left the country with the exception of a brief visit to Samoa in 1998.[12]
[12] G14/82
The Applicant acknowledged his offending and expressed remorse and shame for his past conduct. He regrets the hurt he has caused his family and the victims of his crimes. He writes that he loves his wife and children, and that their support has been the primary motivation for him to change and to becomes a better person.[13]
[13] G14/82
The Applicant began using marijuana and then heroin when he was at school. He was introduced to heroin by a friend’s brother, and by the time he was 17 years old he had become a daily drug user. He continued to smoke heroin until he was arrested in 2012.[14]
[14] G33/175
In both his written submissions and his oral evidence, the Applicant emphasized his drug use was the cause and primary driver of his offending. He submits his drug use was the source of ‘all the offences as well as money struggles, job insecurity, and arguments with his wife about debt’.[15]
[15] G14/79
Despite his drug use, the Applicant maintained consistent employment when not incarcerated. He supported his family working as a general hand, offsider, forklift driver and high-reach operator.[16]
[16] G14/80
Should the Applicant be returned to the Australian community, he intends to live with his wife and children. The Applicant wishes to help support his family financially and has two employment options - either working with his brother at a bakery or as a delivery driver. [17]
[17] Transcript of Proceedings dated 17 October 2022, 33
PC, the Applicant’s wife
PC gave evidence at the hearing in addition to written submissions provided in support of the Applicant.
In a statement dated 19 March 2019, PC writes that following the Applicant’s offending in 2012, she told him to ‘clean himself up or he will no longer have a place’ in her and their children’s lives. The Applicant subsequently stopped using drugs and ‘things were going good’. She and the Applicant became closer and she saw the ‘kind and caring person’ she fell in love with when they first met.[18] The Applicant’s relationships with his children also improved.
[18] G17/112
PC and the Applicant’s children speak to him every day whilst he is in immigration detention and make regular in-person visits depending on PC’s financial capacity. PC has confidence that the Applicant’s remorse for his offending will ensure he does not reoffend.[19] She insists she needs the Applicant to stay in Australia to help their own children financially, emotionally and physically.
[19] G17/115
In a statement dated 2 September 2022 PC outlined the family’s continued financial difficulties. Although she works full-time – 5 to 6 days a week and up to 12 hours each day – she struggles to make ends meet.[20] Her work commitments place additional pressure on her and the children as she is unable to perform tasks which were previously the responsibility of the Applicant. Many of these responsibilities have fallen to the Applicant’s eldest child, DS.[21]
[20] Transcript of Proceedings dated 17 October 2022, 60
[21] Statement of PC dated 2 September 2022, 2
When asked, PC confirmed that she would not move to New Zealand with the Applicant should the cancellation of his visa not be revoked. She explained that the family lacks any connections or support networks in New Zealand and indicated it would be disruptive to their children’s schooling. She also gave evidence that the family’s financial circumstances would preclude the possibility of her or the children visiting the Applicant in New Zealand.[22]
[22] Transcript of Proceedings dated 17 October 2022, 55
PC also expressed concern about her children, in particular her eldest daughter DS, who had to give-up playing rugby in order to help care for her younger siblings. Should the Applicant be removed from Australia, PC fears it will be detrimental to the children’s wellbeing and they will suffer if they are deprived of the opportunity to live together as a family.[23]
[23] Transcript of Proceedings dated 17 October 2022, 53-54
Other character references
In addition to the above, I also have regard to the statements of support from:
·Asofaaiu Misi, the Applicant’s mother;
·Millie Misi, the Applicant’s sister;
·Rebecca Misi, the Applicant’s sister-in-law;
·Athena Alasi, the Applicant’s sister-in-law; and
·Nicholas Stephanis, Director of Nix Express Transport Pty Ltd.
Fred Misi, the Applicant’s brother
In a statement dated 14 March 2019, Fred Misi writes that the Applicant worked with him at a transport company for several years and described him as ‘hardworking and self-motivated’. He confirms that the Applicant has an open offer of employment should he be released from detention.[24]
[24] G22/128
Talilotu Ofo, pastor of the Samoan Church of the Nazarene
In a statement dated 20 March 2019, Talitotu Ofo writes that she had been the Applicant’s pastor since his teenage years and is a close family friend. She states that the Applicant has a strong social and familial network in Australia, and is a kind and caring man who is always willing to offer help in church events and in the community. She writes that the Applicant has been a responsible and loving father to his children, and strongly believes he is remorseful for his offending.[25]
[25] G26/133
Garry Scott, rugby coach
In an undated statement, Garry Scott states that the Applicant was a junior rugby coach who actively contributed and was looked up to by the players, some of whom are now professional players.[26]
[26] G27/134
Kent Mathieson, workshop supervisor
In a statement dated 20 February 2019, Kent Mathieson writes that the Applicant worked under him in the Open Wiring Systems Silverwater workshop, first as a team member before being promoted to team leader. The Applicant also led the team producing complex electrical panels. He considers the Applicant a ‘reliable worker’ with a ‘high level of initiative’, who is responsible and takes pride in his work. Kent Mathieson has confidence in the Applicant’s potential and rehabilitation.[27]
[27] G29/136
discussion
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, the Direction requires decision makers to have regard to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date

The Applicant’s criminal offending is set out in an Australian Criminal Intelligence Commission report dated 10 January 2019.[28]
[28] G6/33-35
1998 and 1999 robbery offences
The Applicant’s offending commenced in 1998 when he was convicted of two counts of robbery while armed with dangerous weapon-S1 and self-administer/attempt self-administer prohibited drug by the Cobham Children’s Court.[29]
[29] G6/35
On 24 September 1999 he was sentenced to 2 years and 9 months imprisonment for robbery in company-SI by the Liverpool District Court.[30]
[30] G6/34
2003 break and enter offence
On 8 August 2003 the Applicant was convicted of break and enter with intent (steal) – T1 and was sentenced to 3 years imprisonment with a non-parole period of 18 months by the Sydney District Court.[31] The sentencing remarks of Judge Backhouse describe how in February and March 2002 the Applicant conspired with others to break and enter the premises of a cinema and steal money.[32]
[31] G6/34
[32] G9/45
The sentencing remarks record that prior to his release on parole for the 1999 robbery in company offence the Applicant was directed not to associate with his co-offenders, two of whom were his brothers-in-law.[33]
[33] G9/50
Driving and other offences
Between 1999 and 2014 the Applicant’s offending included once count of possession of a prohibited weapon, one count of stealing from his place of employment and numerous driving offences.[34]
[34] G6/34
2012 Armed robbery offence
On 2 December 2016 the Applicant was convicted of robbery armed with offensive weapon-S1 and sentenced to 5 years and 3 months’ imprisonment with a non-parole period of 3 years and 3 months.[35]
[35] G6/33
The offending occurred on 6 November 2012 when the Applicant and 3 co-offenders, one of whom was the Applicant’s brother-in-law, robbed an RSL Club.[36] During the robbery a knife was held to the neck of a receptionist at the club and a machete was used to strike and threaten the club’s manager. The agreed facts include that each of the offenders were involved in a joint criminal enterprise to commit armed robbery.[37] Though the Applicant and his brother-in-law did not enter the premises or perform the actual robbery, they provided transport and the getaway car and undertook reconnaissance of the club and surrounding streets.[38]
[36] G7/36
[37] G7/37
[38] G7/37-38
Judge ML Williams SC accepted the Applicant’s expressions of remorse and wish for forgiveness, and that the Applicant plead guilty to avoid going to trial because he did not want the victims to have to relive what had occurred by giving evidence.[39] His Honour also referred to a pre-sentencing report acknowledging the Applicant had made significant changes in his lifestyle since committing the offence some four years earlier.[40] In the intervening period he had been in a stable relationship, ceased using illicit substances and maintained steady employment.[41] The Court also found that the Applicant’s moral culpability for the offending was less than those who performed the actual robbery.[42]
[39] G7/39
[40] G7/39
[41] G7/40
[42] G7/42
The facts of three of the Applicant’s robbery offences demonstrate a degree of preplanning and sophistication and involved the presence of weapons. I accept the Respondent’s submission that the while the Applicant himself did not occasion violence as part of the 2012 armed robbery offence, he facilitated a violent crime by virtue of his role in a joint criminal enterprise which involved violence against the vulnerable staff of the RSL Club.[43]
[43] G7/41
In evidence is an assessment of the Applicant dated 9 July 2020 by forensic psychologist Leesa Morris.[44] In relation to the 2012 armed robbery, Ms Morris writes that the Applicant explained he ‘felt pressured to do it’[45]:
Mr Misi had originally agreed to drive his co-offenders and saw this as “quick and easy money. I was only supposed to drop them off and then go, but they changed the plan on the drive there.” At this point Mr Misi said “I was shitting myself.”
Mr Misi reported that his co-offenders lived in his immediate neighbourhood and that he had met them when purchasing illegal substances. He felt compelled to complete the new plans at the time of the offence as “I was scared for my family, I’d seen and heard what these guys can do, even to their own mates.” Mr Misi thought that he would just “get it over and done with and not look back.”[46]
[44] G33/172
[45] G33/177
[46] G33/177
Irrespective of the Applicant’s explanation, the increasing seriousness of his offending is reflected in the sentences imposed upon him. As noted by the Respondent, the Applicant has been sentenced to terms of imprisonment which in aggregate equate to over 15 years. Terms of imprisonment are the last resort in the sentencing hierarchy and reflect the objective seriousness of his offending.[47]
[47] Respondent’s Amended SoFIC dated 14 October 2022, [29]
The offending also occurred despite a formal notice being issued by the department on 31 May 2007 warning that further offending would impact his migration status. The notice followed a decision of a delegate not to cancel his visa under section 501 of the Act following the 2003 break and enter offence.[48]
[48] G10/55
In sum, I find that the Applicant’s offending and the factors identified above demonstrate the Applicant’s continued indifference to the law and the consequences of his conduct for both the community and his own migration status. With reference to the factors identified in paragraph 8.1.1 of Direction 90, the Applicant’s conduct to date is appropriately considered very serious and weighs heavily against revocation.
The risk to the Australian community
Paragraph 8.1.2 of Direction 90 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. In assessing the risk posed by a non-citizen to the Australian community, I should 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 available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
Based on his criminal history, I find that should the Applicant reoffend there is a risk of physical, psychological and financial harm to members of the community. Further offending by the Applicant would also be expected to impose a significant burden on the wider community including the cost of dealing with the Applicant through the Courts and justice system.
Turning to the likelihood of the Applicant engaging in further criminal or other serious conduct, the Applicant submits that the Tribunal can be satisfied the evidence supports a conclusion that ‘the risk of the Applicant reoffending is low and one that should be tolerated’.[49] In contrast, the Respondent maintains there is a real risk that the Applicant will reoffend and the physical, psychological and financial harm that could be visited on members of Australian community is so serious as to be unacceptable.
[49] Applicant’s undated SoFIC, [35]
Forensic psychologist Leesa Morris’s report followed a 90-mintue assessment[50] with the Applicant on 24 June 2020.[51] In her report Ms Morris details the Applicant’s history of drug use, notably heroin, from age 14 though until he was arrested in 2012.[52]
[50] G33/172
[51] G33/181
[52] G33/175-176
The Applicant reported having stopped using heroin in late 2012 following an argument with his wife, which is consistent with PC’s statement of March 2019. Ms Morris’s reports that the Applicant left the family home to withdraw from heroin ‘cold turkey’ whilst staying with his mother.[53] Shortly after, the Applicant commenced weekly drug and alcohol counselling which he continued until his incarceration in 2016.[54]
[53] G33/175
[54] G5/19
Ms Morris confirms the Applicant meets the criteria for Opioid Use Disorder severe in sustained remission[55] and Adjustment Disorder with Depressed Mood which is current.[56] She observed the Applicant presented as an emotionally flattened man who is confronting the impact of his behaviour and choices upon his wife and children.[57]
[55] G33/176
[56] G33/179
[57] G33/180
Regarding the risk of further offending, Ms Morris opines that an analysis of the Applicant’s static risk factors indicate he will continue to be at medium risk of reoffending. However, it is her opinion that ‘dynamic risk factors’ indicate a more positive outcome.[58]
[58] G33/181
At the time of her report 8 years had passed since the Applicant’s most recent offending and he had spent 4 years in the community, during which he had ‘engaged in prosocial activities’.[59] Ms Morris notes the Applicant’s expressions of remorse for his previous ‘behaviour choices’ and insight into the ‘more immediate factors that influence his risks of engaging in criminal activity’. She concludes that the Applicant is more realistically considered a low to moderate risk of recidivism in light of the positive social support and extended periods of abstinence from criminal activity and substance use.[60]
[59] G33/181
[60] G33/173
In Ms Morris’s opinion, the Applicant’s actual risk of reoffending may be reduced to low should he engage in psychological intervention to provide some insight into his emotional functioning and potential precipitant points. Specifically, she identifies the potential benefits of the Applicant in addressing his childhood and adolescence behaviour and the cognitive patterns that create increased vulnerability to influence from others.[61]
[61] G33/173
Regarding the risk of reoffending, the Applicant is cognisant of the risk posed by associating with his brothers-in-law who were co-offenders. He reported unsuccessfully trying to save money so that he and his family could move out of the area to be distant from them. He acknowledges continued concern about interacting with his brothers-in-law, but PC has told her brothers to stay away from the Applicant and her intervention in this regard has been successful in the past.[62] In a statement PC writes that she rarely sees her brothers except at Christmas time and she has distanced herself and her children from them.[63] I also note her evidence that her brothers have made significant advances in addressing their own drug addictions.
[62] G33/178
[63] Statement of PC dated 2 September 2022, 3
The Applicant points to the four-year period between committing the armed robbery offence and being sentenced in 2016 as evidence of reform and presenting an acceptable risk to the community. He spent that time constructively by working, raising his children and addressing his drug dependence. He told the Tribunal he had not taken heroin for 10 years.[64]
[64] Transcript of Proceedings dated 17 October 2022, 3
However, NSW Department of Corrective Services (corrective services) case notes dated 18 November[65] and 6 December 2019 record that the Applicant tested positive for having used buprenorphine whilst in prison.[66] The Respondent contends that the use of buprenorphine in prison indicates that the Applicant’s addiction to narcotics is sufficiently entrenched that it has not been ameliorated by his time in prison or rehabilitative courses.[67]
[65] Respondent’s Tender Bundle, TB3/75
[66] Respondent’s Tender Bundle, TB3/79
[67] Respondent’s Amended SoFIC dated 14 October 2022, [36]
Corrective services record that when confronted about the positive result the Applicant denied having used buprenorphine in prison and speculated his positive return may have been due to having shared a cigarette with another inmate.[68]
[68] Transcript of Proceedings dated 17 October 2022, 24; see also Respondent’s Tender Bundle, TB3/75
An earlier corrective services report dated 4 December 2019 records the Applicant received notification that he may be deported several weeks prior and his overseer believed that hearing this news led to notable signs of depression. The 6 December report states that:
After maintaining he had not used any drugs several times, Mr Misi admitted using bupe [buprenorphine] on a few occasions when feeling depressed. He regards his use as only a lapse as he wishes to remain drug free for his family. When asked if he used Bupe to self-medicate any cravings for heroin, he declined and stated it was the only thing that allowed him to shut off his negative thoughts. Mr Misi advised that his meeting with CMU Officer was effective as she discussed relapse prevention techniques and referred him to a psychologist. Moreover, he spoke to his daughter on the phone and regained focus on the positives of abstaining from drug use. He does not believe he will have these issues or lapses in the community as there are services for him to engage with.[69]
[69] Respondent’s Tender Bundle, TB3/79
The Applicant’s concession that he used buprenorphine on a number of occasions when he was feeling depressed is consistent with a pre-release report dated 27 December 2019 which states in part:
Upon exploring his initial positive drug test during interviews, Mr Misi denied any drug use and was adamant the test provided incorrect results. Conversely, after his second positive test Mr Misi admitted a lapse in drug use as he began to experience mental health issues. He regarded his drug use in custody as a form of self-medication to minimise the stress relating to his pending deportation.[70]
[70] Respondent’s Tender Bundle, TB3/93
During the hearing the Applicant denied having used suboxone or buprenorphine as reported by corrective services but conceded he had done so whilst in immigration detention.[71] I agree with the Respondent’s observation that the Applicant’s evidence in relation to these reports both vague and unhelpful.[72] Given the information recorded in the reports and the unconvincing evidence of the Applicant, I accept that he used suboxone and buprenorphine whilst in prison.
[71] Transcript of Proceedings dated 17 October 2022, 31
[72] Transcript of Proceedings dated 17 October 2022, 80
Regardless of the exact circumstances in which the Applicant used buprenorphine, his use of unprescribed medication so recently is of considerable concern in light of the connection between his prior drug use and offending.
In considering the Applicant’s criminal history, it is to his credit that his most recent offence occurred in 2012. Though he has been either in prison immigration detention since December 2016, there is nothing in evidence to suggest he used drugs or engaged in further offending or other conduct of concern during the four years he was sober in the community.
The Applicant was a minimum security inmate who maintained stable employment whilst in prison, participated in several education courses and has received positive reports from custodial officers.[73] His brother, sister and mother[74] all vouch for the Applicant’s remorse and it is apparent that being separated from his family and the prospect of being removed to New Zealand has had a salutary effect on him.
[73] Respondent’s Tender Bundle, TB3/94-95
[74] See G22/128, G23/129-130 and G21/125-127
PC’s actions in 2012 demonstrated that she was prepared to support the Applicant in his sobriety and I accept she has prioritised his rehabilitation over her relationships with her brothers. I also take into consideration that she will be a significant protective factor against the Applicant relapsing into drug use given her instrumental role in his ceasing his use of heroin and the experience of having had both her brothers recover from long-term heroin addictions. These will be significant protective factors against the Applicant relapsing into drug use in the future.
Conclusion as to the protection of the Australian community
Whilst acknowledging the significant protective factors in place, notably PC and the Applicant’s desire to be with his family, the nature of the Applicant’s offending is very serious, and his criminal history is lengthy. As demonstrated by the Applicant’s use of buprenorphine in 2019, the Applicant’s sustained recovery from drug use is not assured. Should his drug use resume, it would significantly heighten the risk of the Applicant reoffending and cause significant harm to the community. As such, this primary consideration weighs heavily against revocation of the mandatory cancellation decision.
PRIMARY CONSIDERATION 2 - Family violence committed by the non-citizen
The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence.
Family violence is defined in Part 4 of Direction 90 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes that family member to be fearful.
Direction 90 subparagraph 8.2(3)(a) to 8.2(3)(d) provides that in considering the seriousness of the family violence engaged in by a non-citizen, factors such as the frequency of the conduct, any trend of increasing seriousness, the cumulative effect of repeated acts of violence, rehabilitation achieved and whether the non-citizen has reoffended since being formally warned are relevant factors.
In relation to family violence committed by a non-citizen, subparagraph 8.2(2) provides that 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.
As the Applicant has not been convicted, found guilty or had any charges proven against him that involve family violence, subparagraph 8.2(2)(a) does not apply.
The Respondent contends that there is evidence to indicate that the Applicant has engaged in family violence against PC. Specifically:
(a)A NSW police record dated 9 February 2013 recording PC attending the police station on 8 February 2013 to report a verbal argument at home between her and the Applicant;[75]
(b)A corrective services case note record dated 27 July 2016 detailing a conversation between PC and a corrective services officer;[76]
(c)A pre-release report dated 27 December 2019 which states that a pre-sentence report noted the Applicant ‘allegedly displayed violent behaviour towards his partner when affected by drugs’. The pre-sentence report referred to is not in evidence.[77]
[75] Respondent’s Tender Bundle, TB2/25
[76] Respondent’s Tender Bundle, TB3/51
[77] Respondent’s Tender Bundle, TB3/91-93
On the basis of this evidence, the Respondent submits that subparagraph 8.2(2)(b) is invoked and the issue of family violence is a relevant consideration.
The Applicant argues that the Respondent ‘had not satisfied the threshold requirements of paragraph 8.2’.[78] Specifically, each of the reports relied upon are not ‘independent’ nor ‘authoritative’.[79] Further, the Applicant submits that the reference in subparagraph 8.2(2)(b) to a requirement that the non-citizen ‘has been’ afforded procedural fairness, should be interpreted as requiring procedural fairness be provided at the time the records were produced, rather than a reiteration of the Tribunal’s obligation to provide procedural fairness when considering such records.[80]
[78] Applicant’s Statement of Reply dated 12 October 2022, [19]
[79] Applicant’s Statement of Reply dated 12 October 2022, [17]
[80] Applicant’s Statement of Reply dated 12 October 2022, [13]-[15]

The Respondent contends that the evidence relied upon to demonstrate family violence satisfies the threshold requirements set out in 8.2(2)(b).[81] Specifically, each report is from an independent and authoritative source, all being from officers of the state government.[82] Each indicates the Applicant has been involved in the perpetration of family violence. The Respondent contends that the requirement that the Applicant be afforded procedural fairness is met in circumstances where he has been given the opportunity to make submissions, provide evidence and comment on matters adverse to him.[83]
[81] Respondent’s Amended SoFIC dated 14 October 2022, [45]
[82] Respondent’s Amended SoFIC dated 14 October 2022, [46]
[83] Respondent’s Amended SoFIC dated 14 October 2022, [49]
In QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[84], Anastassuiu J considered whether it is appropriate for the Tribunal to rely on untested and uncorroborated evidence contained in South Australian Police records when evaluating the risk of recidivism and finding that the Applicant represented an unacceptable risk to the Australian community. His Honour observed that there was nothing legally unreasonable about weighing up all the evidence and giving appropriate weight to matters in respect to which an applicant was not charged:
…I regard it as significant in this context that the Tribunal is not bound by the rules of evidence. The Tribunal is engaged in an evaluative exercise, the boundaries of which cannot be precisely demarcated. Properly focusing on the statutory task of the Tribunal, there was nothing legally unreasonable about weighing up all the evidence and giving appropriate weight to the matters for which the Applicant was convicted, to mattes [sic] in respect of which he was charged but not convicted, as well as to matters in respect of which he was not charged. As is plain from the Decision Record, it is the convictions from 2012 and 2014 which principally informed the Tribunal’s assessment of the nature and seriousness of the Applicant’s prior offending and, consequently, risk of re-offending.[85]
[84] [2021] FCA 1394
[85] QDQY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [96] This was also affirmed by the Full Federal Court on appeal in QDQY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 82, [37]-[39]
Similarly, in Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[86] Senior Member Nikolic observed that the value of police records is frequently tested during questioning and procedural fairness can be achieved by having records put to witnesses for response:
In terms of the probative weight to be given to police records, this material routinely forms part of the evidence in mandatory visa cancellation cases. The documents are usually obtained under summons and do not assume the status of evidence until tendered and admitted. Their value is frequently tested during questioning. The Tribunal is not bound by the rules of evidence and although police records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them under the chapeau of ‘other conduct.’ Witnesses must be afforded procedural fairness, however, by having the records put to them for response. It is not accepted that procedural fairness requires the authors of police records to be cross-examined for weight to be placed on these reports.[87]
[86] [2021] AATA 4309
[87] Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4309, [72]
Having delayed hearing the matter so that the Applicant had the opportunity to consider the evidence in relation to family violence, make submissions and provide evidence in relation to this consideration, in my view the procedural fairness requirement set out in subparagraph 8.2(2)(b) has been satisfied. Ultimately, the proper course for the Tribunal is to consider the allegations of family violence and the documentary and oral evidence given during the hearing. It is then a matter for the Tribunal to determine if this primary consideration is relevant and if so the weight to be afforded to it.
In both his written and oral evidence, the Applicant denied engaging in family violence, against PC or any other family member.[88] PC’s evidence is that on 9 February 2013 she had argued with the Applicant but there was no physical violence involved and she was not fearful of the Applicant.[89]
[88] See Transcript of Proceedings dated 17 October 2022, 32; Statement of Applicant dated 10 October 2022
[89] Transcript of Proceedings dated 17 October 2022, 62; Statement of PC dated 10 October 2022, [14]-[15]
PC was asked about the corrective services record of 27 July 2016 at the hearing. That record states that PC reported the Applicant had previously been violent towards her and police were involved, most recently in 2013. In cross examination by the Respondent’s representative, PC denied telling the corrective services officer that the Applicant had been violent or that she declined an apprehended violence order. She did, however, recall speaking to the officer that day and confirmed almost all the other aspects of the report’s contents which were attributed to her.[90]
[90] Transcript of Proceedings dated 17 October 2022, 63
It would appear that the timing and events set out in the corrective services report are consistent with the police case file note of 9 February 2013. That case file note records PC reported to police that the Applicant was agitated and ‘verbally aggressive’ toward her. The report also states that when questioned if she had fears for her safety, PC told police ‘she has none at this stage’ but wished for the police to speak to the Applicant about the manner in which he was speaking to her.
In a written statement dated 10 October 2022, PC denies the Applicant was ever physically violent towards her. She recalled speaking to police on 9 February 2013 in the hope that the officers, who knew the Applicant, might speak to him and stop him ‘badgering’ her about money to support his drug habit.[91]
[91] Statement of PC dated 10 October 2022, [14]-[15]
Having considered the evidence, I do not accept that family violence is a relevant consideration.
The Applicant and PC have been together since 1999. They were married in July 2016.[92] The police record of February 2013 is the only specific incident which may indicate the presence of family violence. That record states that PC was upset but not in fear for her safety. In a written statement PC specifically denies that the Applicant was violent towards her and in reference to the police record, she recalls being upset rather than fearful.
[92] Transcript of Proceedings dated 17 October 2022, 66; see also G18/119
PC denies having told corrective services that the Applicant was violent towards her as recorded in the corrective services report dated 27 July 2016. Corrective services records indicate the same officer contacted other members of the Applicant’s family at that time and that the Applicant attended ‘PSR appointment as arranged’, which would appear to be a reference to the pre-sentencing report.[93]
[93] Respondent’s Tender Bundle, TB3/50
The sequence of events strongly suggests that the pre-release report’s reference to the Applicant’s violent behaviour towards PC when affected by drugs was a reiteration of what was recorded in the pre-sentencing report. The pre-sentencing report is not before the Tribunal, but it is reasonable to conclude that it included observations similar to those recorded by the corrective services officer who prepared the report. As such, the sum of the evidence in support of the Applicant having engaged in family violence is a police record stating that PC was not fearful and a reference to a pre-sentencing report based on an account of a conversation with PC which she contends is inaccurate.
For these reasons, I am not satisfied that the evidence rises to the level contemplated in Part 4 of the Direction and subsequently this primary consideration is afforded neutral weight.
primary consideration 3 - BEST INTERESTS of MINOR children in australia
Direction 90 sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known wishes of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
The Applicant is father to four children. His eldest child DS is now 19 years old and no longer a minor. His second daughter MI was born in January 2006, his son MC in August 2007 and his youngest child MA was born in February 2015.[94]
[94] G19/120-123
Until his 2016 incarceration the Applicant was living with his wife and their four children. He was responsible for parental duties including taking the children to and from school, caring for MA who was an infant, coaching football and the children’s religious activities.[95]
[95] G14/75
DS has written two statements in support of her father’s application. In her statement dated 16 March 2019, she writes that she fell into depression following her father’s incarceration and lost motivation for school, sport, and church activities. Whilst DS is no longer a minor, she is concerned about the wellbeing of MA who she fears may grow up without knowing her father should he be deported to New Zealand.[96]
[96] G20/124
DS writes that she understands the Applicant’s past offending but described him as a good father who has learnt from his incarceration. She writes if the Applicant returns to their home it will provide the family with financial stability and will also be beneficial to PC’s mental health.[97]
[97] G20/124
In a statement dated 2 September 2022 DS writes of her concern for her younger sister MI, who has become sensitive and emotional following the Applicant’s detention.[98]
[98] Statement of DS dated 2 September 2022, [22]
In her own statement dated 2 September 2022 MI confirms the Applicant played a significant role in the lives of she and her siblings prior to being incarcerated. He motivated DS and her brother MC to play rugby. DS became the recipient of a rugby scholarship.[99] MI believes that her family was ‘robbed a great deal of time, potential, opportunity…[to] simply be together’ due to the Applicant’s incarceration and detention,[100] and that removing the Applicant to New Zealand will exacerbate the difficulties she and her family are facing.[101]
[99] Statement of MI dated 2 September 2022, [9]
[100] Statement of MI dated 2 September 2022, [12]
[101] Statement of MI dated 2 September 2022, [13]
In a statement dated 2 September 2022, MC writes of his father’s support for his sporting pursuits and his hopes to be able to continue to play rugby should the Applicant be able to return home.[102] MC’s performance at school and his social life have also suffered as the result of mental instability brought on by his father’s incarceration and detention.[103]
[102] Statement of MC dated 2 September 2022, [11]
[103] Statement of MC dated 2 September 2022, [9]
MA’s family are concerned that as she was physically separated from her father at a young age, the continued absence of the Applicant is having a detrimental effect on her.
Prior to his imprisonment in 2016, the Applicant maintained frequent contact with PC’s sister’s four children.[104] He played an active role in their lives prior to his imprisonment as their parents had separated. He claims to have become a father figure to them and to have supported them emotionally and physically. He concedes he has not seen his nieces since his imprisonment which he attributes to their mother having to cope without help from the children’s father. PC confirms in a written statement that the Applicant is a father figure to her sister’s children since their own father is absent. She writes they love, respect and look up to the Applicant.[105] However, it is not disputed that the children are cared for by their mother and the Applicant does not have a parental responsibility for them.
[104] G14/76
[105] G17/114
The evidence that the Applicant cares for his children and intends to resume his role as a central part of his children’s lives is accepted. The Respondent accepts that it is in the best interests of the Applicant’s children that he remain in Australia, but argues this consideration should be afforded limited weight, particularly as the children have primarily been cared for by their mother since 2016 and questions remain about his capacity to play a positive role in their lives.[106]
[106] Respondent’s Amended SoFIC dated 14 October 2022, [58]
Based on the evidence of PC and the children, I am of the view that the Applicant has a significant and central role in the family and the lives of his children. Their claim to have maintained regular contact with him throughout his imprisonment and detention was not challenged by the Respondent. His contribution to providing a positive environment for the children, notably during the four year period between the 2012 offending and his being sentenced in 2016 is accepted. PC and two of the Applicant’s minor children confirm that his absence has had a deleterious effect on them individually and the functioning of their family.
For these reasons I find that this primary consideration weight very heavily in favour of revoking the cancellation decision.
primary consideration 4 - Expectations of the australian community
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
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.
In FYBR v Minister for Home Affairs (FYBR)[107] the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 90.
[107] [2019] FCAFC 185
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. Having regard to the provisions of Direction 90 and the Applicant’s criminal offending, the Australian community would expect that the Applicant should not continue to hold a visa.
Observing the norm and the principles outlined in in paragraph 5.2 of Direction 90, I am satisfied that the expectations of the Australian community would normally weigh against revoking the visa cancellation on account of the Applicant’s criminal conduct.
Other considerations
I now turn to considering the other relevant considerations set out in Direction 90.
Extent of Impediments if removed
I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards in New Zealand.
The Applicant submits that as Australia has been his home since he was a child he will have no family, home, support system, job, social security or knowledge of where to go should he be returned to New Zealand. He concedes being in good physical health but is concerned that he would be depressed and unable to ‘handle’ being separated from his wife and children and fears he would ‘fall back into his old habits or worse’, which I take to be a reference to his drug use.[108]
[108] G14/82
During the hearing, the Applicant was asked how the prospect of having his visa cancelled and being removed to New Zealand had affected him. He stated that his entire life is in Australia, and that the prospect of being deported to New Zealand scared him. Whilst he had not thought about suicide in the past, he gave evidence that he feared being unable to cope with being separated from his family if he is sent to New Zealand without the prospect of returning.[109]
[109] Transcript of Proceedings dated 17 October 2022, 23-24
I accept the Respondent’s submission that the Applicant would have access to the social and economic support at a level comparable to Australia provided by the New Zealand government, which includes universal healthcare and social welfare.[110]
[110] Respondent’s Amended SoFIC dated 14 October 2022, [66]
Nonetheless, the Applicant would be expected to face significant challenges should he be returned to New Zealand. He would be socially isolated and the separation from his family would likely be extremely detrimental to his mental health.
For these reasons, I find that this consideration weighs strongly in favour of revoking the cancellation decision.
Links to the Australian community
I am required to consider the strength, nature and duration of the Applicant’s ties to Australia. The Applicant has been residing in Australia since he was a child and given the period of time he has spent in Australia he is entitled to some weight under subparagraph 9.4.1(2) of the Direction.
The Applicant has strong and enduring ties to Australia, most significantly through his family. His father passed away in 2020 while the Applicant was in detention, and the Applicant’s mother writes of her faith in her son. Taken together I accept that the Applicant is an important part of a tight-knit extended family in Australia and his removal would be detrimental to his mother, siblings in Australia as well as the members of his extended family that he maintains contact with.[111]
[111] G21/127
His removal would be particularly difficult for PC and the Applicant’s eldest child DS. I acknowledge the Minister’s contention that there is little evidence of significant financial or practical impact on his family,[112] but I accept the evidence of PC and the children that the Applicant’s absence has been difficult both practically and emotionally, and the additional burden of looking after the younger children and housework has been shared between PC and the older children.[113] PC has been required to work six days a week and the Applicant acknowledges the difficulty his absence has caused for his wife and children.[114]
[112] Respondent’s Amended SoFIC dated 14 October 2022, [72]
[113] Transcript of Proceedings dated 17 October 2022, 52
[114] Transcript of Proceedings dated 17 October 2022, 60
I also take into account that when he had been out at the community, he has contributed to his family through paid employment and actively participated in his community most prominently through his children’s sport.[115]
[115] G14/81; G27/134
For these reasons, this consideration weighs in favour of revoking the cancellation decision.
Conclusion
In balancing the considerations, the protection of the Australian community is afforded significant weight in favour of refusing to revoke the mandatory cancellation in light of the seriousness of the Applicant’s offending. If not for the Applicant’s long-standing rehabilitation this primary consideration would have been afforded significantly more weight against revocation. The expectations of the Australian community also weigh against revoking the mandatory cancellation decision.

I place considerable weight on the best interests of the Applicant’s three minor children. There is considerable evidence that they care deeply for the Applicant and his absence has been difficult for them individually and the functioning of their family.
The Applicant’s ties to the community are significant as he immigrated to Australia with his family when he was a child. The evidence supports a conclusion that he has been a high functioning and active member of the Australian community, despite his long-term drug dependency. I accept that he would find adjusting to life in New Zealand isolating and difficult. The Applicant’s links to the Australian community and the extent of the impediments he would face if removed weigh in favour of revocation.
In weighing up these considerations and having considered all the circumstances, I have decided that there is another reason to revoke the cancellation of the Applicant’s visa and the mandatory cancellation should be revoked.
Decision
For the reasons stated above, the decision of a delegate of the Respondent dated 4 August 2022 not to revoke the mandatory cancellation of the Applicant’s visa, is set aside. In substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

...........................[Sgd].............................................
Associate
Dated: 5 December 2022

Date(s) of hearing: 10 and 17 October 2022

Date final submissions received: 14 October 2022

Counsel for the Applicant: Ms C Taggart

Solicitors for the Applicant: Mr N Nandan

Solicitors for the Respondent: Mr A Cunynghame

[2022] AATA 4140

26 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Standing

Date(s) of hearing:	10 and 17 October 2022
Date final submissions received:	14 October 2022
Counsel for the Applicant:	Ms C Taggart
Solicitors for the Applicant:	Mr N Nandan
Solicitors for the Respondent:	Mr A Cunynghame