MKDM and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 261
•4 March 2025
MKDM and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 261 (4 March 2025)
Applicant/s: MKDM
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10537
Tribunal:Senior Member G McCarthy
Place:Canberra
Decision Date: 4 March 2025
Written Reasons Date: 19 March 2025
Decision:The Tribunal affirms the decision under review.
……………[SGD]……………………….
Senior Member G McCarthy
CATCHWORDS
MIGRATION – review of decision not to revoke mandatory cancellation of protection visa under section 501CA(4) of Migration Act 1958 – applicant accepts he does not pass character test – whether another reason to revoke cancellation – consideration of Direction No. 110 – consideration of Australia’s non-refoulement obligations – Tribunal not satisfied another reason to revoke – decision not to revoke cancellation of visa affirmed
LEGISLATION
Migration Act1958 (Cth) ss 198AD, 198AE, 500, 501, 501CA
CASES
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs ]2023] FCAFC 138
Khaled Ayache and Minister for immigration and Border Protection [2018] AATA 186
FYBR v Minister for Home Affairs [2019] FCAFC 185
Frugtniet v ASIC [2019] HCA 16
HSRN and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4377
LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2024] HCA 12
Manebona and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 3321
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Uelese v Minister for Immigration and Border Protection54 [2015] FCA 358
YNQY and Minister for Immigration and Border Protection [2017] FCA 1466SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA (dated 22 December 2014)
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (dated 7 June 2024)
REASONS FOR DECISION
By application dated 16 December 2024, MKDM (the Applicant) applied to the Tribunal under s 500(1)(ba) of the Migration Act 1958 (Cth) (the Act) for review of a decision of a delegate of the Minister dated 10 December 2024[1] not to revoke the mandatory cancellation of the Applicant’s visa[2] (the decision under review). The Applicant received a copy of the Minister’s decision on 11 December 2024, under cover of a letter that date.[3]
[1] HB 43
[2] A Class XD Subclass 785 Temporary Protection Visa
[3] HB 40
On Monday and Tuesday, 24 and 25 February 2025, I heard the application.
On the Friday prior to the hearing, I was informed the Applicant had been remanded in custody until 19 April 2025 in relation to unrelated and undetermined criminal charges. For this reason, with his agreement and the agreement of his legal representative, Ms Battisson, the Applicant participated in the hearing by telephone.
At the conclusion of the hearing, Ms Battisson asked for time to confer with her client regarding anything further he wished to put by way of submission in support of his application for review.
This required consideration of s 500(6L) of the Act which relevantly provides that if I had not made a decision in response to the Applicant’s application within 84 days after the day on which he was notified of the decision under review, the Tribunal would be taken to have made a decision to affirm the decision under review. The Applicant was notified of the decision under review on 11 December 2024, meaning the 84th day within which the Tribunal could decide the application, rather than be taken to have affirmed it, was 5 March 2025.
By reason of the tight timeframe, I gave the Applicant until 3pm on Thursday, 27 February 2025 to make any further submissions. Ms Battisson acknowledged that was sufficient time. I gave the legal representatives for the Minister leave to make any submissions in reply by 5pm on Friday, 28 February 2025.
On 27 February 2025 Ms Battisson advised she had no further submissions to make.
I gave careful consideration to the written and oral submissions of the Applicant and the Minister in response to the Applicant’s application for review. After doing so and evaluating the Applicant’s facts and circumstances by reference to the evidence and the Minister’s direction made under s 499 of the Act, Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, dated 7 June 2024 (Direction 110), I concluded, on balance, the Minister’s decision not to revoke the cancellation should be affirmed.
On 4 March 2025, I ordered accordingly. What follows are my reasons for doing so.
FACTUAL BACKGROUND
The Applicant is Iranian. He was born on 18 August 1981. On 26 January 2013, the Applicant arrived in Australia aged 31. He arrived without any family members. He is presently 43 years old. The Applicant has resided in Australia ever since, save for two visits to Azerbaijan in 2017 and 2018 to visit family.
On 6 January 2017, arising from the Minister accepting his conversion to Christianity, the Applicant was granted a Class XD Subclass 785 Temporary Protection visa (the protection visa).
The Applicant stated that for approximately six or seven years after arriving in Australia he worked in the construction industry. He stated that arising from that work he developed carpal tunnel syndrome in both hands. He stated he was prescribed opioid pain medication. He stated that when his doctor stopped prescribing painkillers he discovered he had become addicted, although acknowledging that prior to his doctor stopping his prescriptions he had been supplementing prescribed painkillers with ‘ice’[4] which I understood to mean methylamphetamines.
[4] Applicant’s first statutory declaration at [8]
The Applicant stated he used his workers compensation insurance payments to pay for ice which he bought “on the black market”[5] but when his insurance payments were cut he started shoplifting “in earnest to feed my habit”.[6]
[5] Applicant’s first statutory declaration at [9]
[6] Applicant’s first statutory declaration at [10]
The Applicant accepted that his criminal offending, which was extensive and frequent, was serious.[7] He pleaded guilty to all offences.[8]
[7] Applicant’s first statutory declaration at [11]
[8] Applicant’s first statutory declaration at [17]
The Applicant stated that in 2023 he attended non-residential drug recovery programs at Odyssey House as part of the Magistrates Early Referral Into Treatment (MERIT) program. He stated he also attended drug recovery programs at Liverpool as required under a Community Correction Order (CCO). The Applicant stated the programs helped him to understand drug misuse and “how to stop the habit”.[9]
[9] Applicant’s first statutory declaration at [21]
The Applicant was imprisoned on 6 March 2024, which he described as “a blessing in disguise as I have stopped drugs since then”.[10] At this point, he was imprisoned on remand following refusal of an application for bail.[11]
[10] Applicant’s first statutory declaration at [20]
[11] HB 291
On 4 April 2024, the Applicant was convicted of 11 counts of shoplifting, each to a value less than $2000. Each count was described as a “sequence”, meaning each count represented a sequence of shoplifting offences with a stated total value of items stolen in each count.
All the counts involved theft from Coles or Woolworths supermarkets in different suburbs of Sydney. The amounts in each count ranged from $929.35 to $1,791.70. The total value of items stolen is $14,351.48.[12] Sequence 1 related to items including nappies and Nescafe.[13] I was not taken to any further details regarding the shoplifting, in particular the number of times he shoplifted from the supermarkets, but the value of the goods stolen and the number of sequences indicates the Applicant stole on a great many occasions. The presiding Magistrate of the Local Court of New South Wales (the Court) who convicted the Applicant described his stealing as –
part of a systematic process of stealing over a relatively short period of time. There is a need for both person[al] and general deterrence. The objective criminality is approaching the mid-range.[14]
[12] HB 293
[13] HB 293
[14] HB 293-294
In determining penalty, the Court took into account the Applicant’s prior conviction in 2023 for sexually touching another person without consent, for which he was placed on a two year CCO. The shoplifting convictions constituted a breach of the CCO, with the result that the earlier sexual touching conviction was called up in determining penalty. Other offences were also taken into account. The Court sentenced the Applicant to an aggregate term of imprisonment of 15 months, with a non-parole period of eight months.[15]
[15] HB 294
In doing so, the Court acknowledged there were special circumstances arising from the Applicant’s drug addiction and his need for money, hence the thefts, to support his addiction. The Court nevertheless concluded a term of imprisonment was necessary. The Court’s sentencing remarks included:
[T]he sentencing assessment report and the merit report are not particularly positive, the merit report although to his credit he attended the merit program he has only completed five out of the six appointments and he was removed from the merit report due to his non-compliance. The sentencing assessment report is not particularly positive. As I have said, the further report which I had made reference to earlier is that the defendant’s response to supervision to put it bluntly and directly has been poor. It appears having regard to the contents of the sentencing assessment report that it appears to me and having regard to section 66 that the community cannot be adequately protected if the sentence of imprisonment was to be served in the community. In coming to that conclusion, I note the defendant committed a large number of offences including offences that were committed whilst he was in breach of Court orders. The breach of the Court orders not only involved breaches by non-compliance with the Court orders but also breaches involving further offending. Accordingly having regard to section 66 I am of the view that the community cannot be adequately protected by a supervised order.
I am prepared to make a finding of special circumstances particularly in relation to the defendant’s need to address his addiction.[16]
[16] HB 294
Arising from his sentence, the Court noted the Applicant was eligible for release on 17 September 2024.[17]
[17] B2 94
On appeal, on 22 May 2024, the District Court of New South Wales confirmed the sentence albeit backdating by 10 days the date of commencement of the non-parole period and hence (by 10 days) the date the Applicant became eligible for release.[18]
[18] HB 316-HB 320
The Applicant stated that when in prison he worked in the prison lolly shop packaging lollies and in the prison timber shop doing basic carpentry.[19]
[19] Applicant’s first statutory declaration at [22]
The Applicant stated that when in prison he went to church regularly. This is confirmed by a letter dated 24 June 2024 from the chaplain at the Bathurst Correctional Centre who says the Applicant “attended the weekly chapel service with others from his wing, and he has always engaged in those services as an active participant.”[20] The chaplain adds: “With God’s help, he has expressed a desire to amend his life and behaviour with a view to never returning to prison. He realises that he needs to make some major changes in his life. I believe [the Applicant] is doing the best he can to become a positive member of society”.[21]
[20] HB 119
[21] HB 119
The Applicant stated he did not have any behavioural issues in prison or detention and that he has “cut all ties with the people I used to associate with when I did drugs and offended.”[22]
[22] Applicant’s first statutory declaration at [25]-[26]
The Applicant stated in his first statutory declaration that if he was released from immigration detention, as subsequently occurred on 10 February 2025, he could live with his friend Mr Haggo who he knows from Iran although that prospect did not eventuate. He stated he could “get work easily” as a painter and because he has his “construction white card and EWP (elevated work platform) ticket”.[23] He stated he would seek out help to stay off drugs.[24]
[23] Applicant’s first statutory declaration at [29]
[24] Applicant’s first statutory declaration at [30]
The Applicant stated his understanding that he might be sent to Nauru if released from immigration detention. He stated he does not know anyone on Nauru and is scared to go there because he has heard –
from the media that people who end up in Nauru are at risk of violence and end up with terrible mental health. Also, they can’t stay on Nauru - they eventually have to move somewhere else again. With my criminal record, I don’t know what country would take me.[25]
[25] Applicant’s first statutory declaration at [32]
Ms Battisson referred me to reports prepared by the Asylum Seeker Resource Centre in support of the Applicant’s fears about being sent to Nauru.[26]
[26] HB 995 and HB 1065
In his statutory declaration, the Applicant stated his understanding that he might be released from immigration detention on a temporary visa, referring to a bridging visa, as subsequently occurred on 10 February 2025. The Applicant expressed concern about being issued a temporary visa, rather than revocation of the cancellation of his protection visa, because he would not be able to make long term plans. He stated he wants to bring his son, aged 19, out from Iran to live with him, and that he would not be able to do so if he was on a temporary visa. The Applicant stated his son asks if he could come to Australia.
The Applicant also expressed concern that if he was issued with a temporary bridging visa the Government “is still trying to remove me”.[27] The Applicant said the prospect of being removed was causing him stress as he did not know anywhere else (except Australia) and could not imagine having to try to start again.[28]
[27] Applicant’s first statutory declaration at [34]
[28] Applicant’s first statutory declaration at [34]
Arising from the convictions and sentence on 4 April 2024, on 7 September 2024 the Applicant was released from prison on parole, to be supervised on parole.
As mentioned, a few days before the hearing of the Applicant’s application for review, the Applicant was arrested and is now remanded in custody until 19 April 2025. Ms Battisson said she did not know what charges the Applicant faces that gave rise to his arrest. She could provide only her instructions that the alleged offences occurred some years ago. The Applicant attended the hearing and gave evidence by telephone. He stated his arrest related to events some years ago, but he did not know the details.
The Minister could offer nothing in relation to the recent arrest.
Where I knew nothing about the circumstances of the recent arrest or why he is remanded in custody, I decided not to have any regard to the Applicant’s recent arrest for the purpose of deciding his application.
LEGAL BACKGROUND
On 31 May 2024, a delegate of the Minister informed the Applicant that his protection visa was cancelled under s 501(3A) of the Act.[29] That section states:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
[29] HB 362
Pursuant to s 501CA(3), the delegate of the Minister invited the Applicant to make representations about revoking the cancellation decision.[30] Section 501CA relevantly provides:
[30] HB 364
Cancellation of visa -revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non - disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(3A) The notice under subsection (3) must be given in the prescribed way.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
On 7 June 2024, the Applicant requested the Minister to revoke the mandatory cancellation of his protection visa.[31] On 23 (or 28) June 2024, the Applicant provided his reasons for why the mandatory cancellation should be revoked.[32]
[31] HB 99
[32] HB 100
On 11 December 2024, the Minister’s delegate made a decision not to revoke the original decision because they were not satisfied either of the considerations under s 501CA(4)(b)(i) and (ii) of the Act were made out. Having decided not to revoke the original decision, the Applicant’s protection visa remained cancelled.[33]
[33] HB 40 and HB 43
The delegate provided a statement of reasons for why the Applicant did not pass the character test (as defined in s 501 of the Act) and why, in their opinion, there was not another reason for why the cancellation decision should be revoked having regard to the primary and other considerations in Direction 110.[34]
[34] HB 45
On 16 December 2024, the Applicant applied to the Tribunal for review of the delegate’s decision made on 11 December 2024.[35] On review, the Tribunal’s function is to hear the matter afresh and to decide what it considers to be the correct or preferable decision on the evidence before it.[36]
[35] HB 28
[36] See, for example, Frugtniet v ASIC [2019] HCA 16 at [51]
THE CHARACTER TEST: SECTION 501CA(4)(b)(i)
The Applicant accepted he does not pass the character test relevantly prescribed under s 501(6)(a) of the Act.[37] Having regard to his convictions and sentence to a term of imprisonment of 15 months and the definition of “substantial criminal record” in s 501(7) of the Act, that acceptance was plainly right. I find accordingly.
[37] Applicant’s statement of facts and contentions dated 27 January 2025 at [5]
ANOTHER REASON: SECTION 501CA(4)(b)(ii)
Pursuant to s 499(2A), when deciding whether there is ‘another reason’ for why the cancellation of the Applicant’s protection visa should be revoked, I was required to comply with Direction 110.[38]
[38] LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2024] HCA 12 at [19]; Khaled Ayache and Minister for immigration and Border Protection [2018] AATA 186
The starting point was the eight principles in paragraph 5.2 of Direction 110:
5.2. Principles
The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 50 IC A. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2. (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) The safety of the Australian Community is the highest priority of the Australian Government.
(3) 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.
(4) 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 noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5) 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.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.
(7) 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Direction 110 then moves, in Part 2, to the topic: “Making a decision”. Paragraphs 6, 7, 8 and 9 in Part 2 state:
6. Making a decision
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.
7. Taking the relevant considerations into account
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
8. Primary considerations
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
9. Other considerations
(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests
In Manebona and Minister for Immigration, Citizenship and Multicultural Affairs, SM Manetta commented on the operation of Direction 110 as follows:
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in subparagraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.[39]
[39] [2024] AATA 3321 at [25]-[27]
I agree with and adopt those statements.
Pursuant to paragraph 6, I was required to take into account the primary considerations identified in paragraph 8 and the other considerations identified in paragraph 9 where relevant. For the reasons given by Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (CRNL),[40] I was required then to weigh and balance the various primary and other relevant considerations outlined in Direction 110 against each other and, by this means, evaluate whether there was ‘another reason’ for why the cancellation should be revoked.[41]
[40] ]2023] FCAFC 138
[41] ]2023] FCAFC 138 at [139]
Pursuant to paragraph 7, the primary consideration identified in paragraph 8.1 (protection of the Australian community) “is generally to be given greater weight than other primary considerations” and primary considerations in paragraph 8 “should generally be given greater weight than the other considerations” in paragraph 9.
Paragraph 8 states the primary considerations:
1) protection of the Australian community from criminal or other serious conduct;
2) whether the conduct engaged in constituted family violence;
3) the strength, nature and duration of ties to Australia;
4) the best interests of minor children in Australia;
5) expectations of the Australian community.
Regarding the first primary consideration, paragraph 8.1(1) states, among other things, decision-makers “should keep in mind that the safety of the Australian community is the highest priority of the Australian Government.” Paragraph 8.1(2) states decision-makers should also give consideration to –
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Paragraphs 8.1.1 and 8.1.2 (and the subparagraphs within them) then provide details about the two considerations stated in paragraph 8.1(2).
Paragraphs 8.1.1(1)(a)-(i) state eight factors to which decision-makers “must have regard” when considering “the nature and seriousness of the non-citizen’s criminal offending or other conduct to date”.
Paragraph 8.1.1(1)(a) opens with the words “without limiting the range of conduct that may be considered very serious”, and then describes three “types of crimes or conduct [that] are “viewed very seriously by the Australian Government and the Australian community”, the first of which is “violent and/or sexual crimes”.
When paragraphs 8.1.1(1)(a) and (b) are read together, it is clear that paragraph 8.1.1(1)(a) establishes the deemed views of the Australian Government and the Australian community that some types of crimes or conduct are ‘very serious’, per paragraph 8.1.1(1)(a), whilst other types are ‘serious’ per paragraph 8.1.1(1)(b).[42]
[42] LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2024] HCA 12 at [21]-[27]
With expressed reference to paragraph 8.1.1(1)(a), the Applicant accepted his criminal conduct for which he was convicted on 4 April 2024 is “serious”, as evidenced by the imposition of a sentence of imprisonment. He accepted too the offence for which he was convicted in 2023 and placed on a two year CCO, “sexually touch another person without consent”, is “serious and unacceptable”. Ms Battisson noted the offence related to the Applicant touching a woman’s breasts without her consent. Ms Battisson also noted that, on previous occasions, the Applicant came to the woman’s home at night where they would both take drugs and on occasion have sex.[43]
[43] Applicant’s statement of facts and contentions dated 27 January 2025 at [26]-[27]
Whilst it was not clear, the Applicant’s submission seemed to be that the touching offence was ‘serious’, but not ‘very serious’, notwithstanding the reference to paragraph 8.1.1(1)(a).
With reference to paragraph 8.1.1(1)(a)(i), “violent and/or sexual crimes”, the Minister submitted the ‘sexual touch’ offence should be considered ‘very serious’ because it involves a sexual crime.[44] The Minister submitted the offence weighed heavily against revocation of the cancellation decision.
[44] Respondent’s amended statement of facts and contentions dated 21 February 2025 at [33]-[34] and [36]
The second type of crime or conduct, per paragraph 8.1.1(1)(a)(ii), “viewed very seriously” by the Australian Government and the Australian community is “crimes of a violent and/or sexual nature against women and children, regardless of the sentence imposed”.
In this case, where the ‘sexual touch’ offence was a sexual crime and a crime of a “sexual nature” against a woman, in my view I am obliged by the words in paragraphs 8.1.1(1)(a)(i) and (ii) to find it is a crime “viewed very seriously” by the Australian Government and the Australian community irrespective of it being in the lower range of sexual crimes. Regarding seriousness, I also note the Court took the offence into account, with an indicative sentence of three months,[45] when determining an overall or aggregate term of imprisonment of 15 months.
[45] HB 294
I add that after weighing the other considerations, particularly the nature and frequency of the shoplifting and illicit drug offences and (in my view) the medium to high risk of the Applicant reoffending, I concluded that even if the sexual touching offence were regarded as ‘serious’ it would not have made a difference to the outcome: I would still have affirmed the decision not to revoke the cancellation of the Applicant’s protection visa.
Paragraph 8.1.1(b) similarly opens with the words “without limiting the range of conduct that may be considered serious”, and then describes four “types of crimes or conduct [that] are considered by the Australian Government and the Australian community to be serious”. The first, second and fourth types listed are not applicable in this case.
The third type, per paragraph 8.1.1(1)(b)(iii), is –
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).
Section 501(6) states 11 circumstances in which a person “does not pass the character test”. Some are objectively determined, for example where a person has a “substantial criminal record” as defined, whilst others are “dependent upon the decision-maker’s opinion”.
Two of the latter circumstances are stated in s 501(6)(c) and (d):
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way;
With reference to s 501(6)(c), the Applicant properly accepted his criminal conduct is serious and unacceptable. The Applicant did not submit his conduct did not meet the type of “crimes or conduct” described in paragraph 8.1.1(1)(b)(iii). Nor, in my view, could he have appropriately done so. I set out below a summary of the Applicant’s criminal offending. In my opinion, the sheer quantity of crimes consistently occurring over a six year period, with apparent indifference to the criminality of his conduct, shows the Applicant to be a person who “does not pass an aspect of the character test”.
In my opinion, with reference to s 501(6)(d)(i) of the Act, there is a risk (and in my view a medium to high risk) that the Applicant would engage in criminal conduct in Australia if he were allowed to remain in Australia otherwise than in custody. In my opinion, that is borne out by the frequency of the Applicant’s repeat offending, which was often in breach of Court orders. For that reason also, in my opinion, the Applicant is a person who does not pass an aspect of the character test.
The Minister submitted the Applicant’s crimes (other than the touching offence which should be viewed as very serious) should be viewed as serious and weighed heavily against revocation.
By reference to paragraph 8.1.1(1)(b)(iii), I was satisfied the crimes committed by the Applicant are considered by the Australian Government and the Australian community to be serious. This weighed heavily against revocation.
Paragraph 8.1.1(1)(c) raises for consideration the sentence imposed by the Court, except in the case of crimes or conduct mentioned in subparagraph 8.1.1(1)(a)(ii) which concerns crimes of a violent and/or sexual nature against women or children, subparagraph 8.1.1(1)(a)(iii) which concerns family violence and subparagraph 8.1.1(1)(b)(i) which concerns forced marriage. These exceptions are consistent with these types of crimes or conduct being viewed very seriously or seriously, respectively, “regardless” of the sentence imposed or (in the case of subparagraph 8.1.1(1)(a)(iii) and subparagraph 8.1.1(1)(b)(i)) “regardless” of whether there is a conviction for an offence.
Neither party made a submission specifically directed to paragraph 8.1.1(1)(c). Where the Applicant accepted his criminal conduct is serious, it was perhaps unnecessary also to consider the aggregate sentence imposed by the Court on 4 April 2024 when determining whether the Applicant’s crimes or conduct (excepting the touching offence) should be considered serious. However, the Court’s sentencing remarks and the sentence imposed (confirmed on appeal) further evidenced that the Applicant’s crimes were serious, which weighed heavily against revocation.
Paragraph 8.1.1(1)(d) concerns the impact of the Applicant’s offending on any victims of offending or other conduct and their family. The Applicant submitted there is no evidence addressing this consideration. The Minister made no submissions regarding this consideration. Where (on the evidence) the Applicant is a user, not a supplier, of illicit drugs and his stealing involves shoplifting from supermarkets not individual persons, I elected to put this consideration aside.
Paragraph 8.1.1(1)(e) concerns “the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness”.
The Applicant appropriately accepted in relation to the shoplifting offences he is a “frequent offender”.[46] The Applicant also appropriately accepted he commenced offending in late 2019 and that where the sexual touching offence occurred subsequently and for which he was convicted on 19 September 2023, his offending increased in seriousness.[47]
[46] Applicant’s statement of facts and contentions dated 27 January 2025 at [37]
[47] Applicant’s statement of facts and contentions dated 27 January 2025 at [37]
The Minister referred to the Applicant’s criminal record[48] which is extensive over a six year period in terms of quantity and variety of offences between 2018 and 2024. I set out a summary of the Applicant’s criminal offending:
1) 2018: drive motor vehicle while licence supended;
2) 2019 drive motor vehicle while licence suspended (first offence); drive vehicle while illicit drug present in blood; drive motor vehicle while licence suspended (second offence); use unregistered registrable motor vehicle on road; possess prohibited drug (2 counts);
3) 2021: goods in personal custody suspected being stolen (2 counts); possess prohibited drug (2 counts);
4) 2022: possess prohibited drug (3 counts); shoplifting; custody of knife in public place;
5) 2023: possess prohibited drug; sexually touched another person without consent;
6) 2024: shoplifting (11 counts); goods in personal custody suspected being stolen; drive while licence cancelled (second offence) possess prescribed restricted substance; possess prohibited drug.
[48] HB 315-327
The Applicant’s crimes were numerous and serious. There is a trend of increasing seriousness. The driving offences instituted a very serious risk to the safety of the Australian community. The Court described the Applicant’s criminality for which he was convicted on 4 April 2024 as “approaching the mid-range”. The nature and increasing seriousness of the Applicant’s offending weighed heavily against revocation.
Paragraph 8.1.1(1)(f) concerns “the cumulative effect of repeated offending”. The Applicant submitted there is no evidence of a cumulative effect. The Minister made no submissions regarding this consideration. I was not persuaded this factor is relevant when characterising or assessing the nature and seriousness of the Applicant’s conduct. The stealing and the illicit drug taking both continued on a linear plane, and (in my opinion) would likely continue in the sense of there being more of the same, but I did not think something different and more serious has occurred by way of a cumulative effect arising from the totality of the Applicant’s crimes. I put this consideration aside.
Paragraph 8.1.1(1)(g) concerns the provision of false or misleading information to the Department including nondisclosure of prior criminal offending. There was no suggestion this factor is relevant, and I put it aside.
Paragraph 8.1.1(1)(h) is concerned with whether the Applicant has re-offended since been formally warned or made aware about the consequences of further offending in terms of his migration status. There was no suggestion this factor is relevant, and I put it aside.
Paragraph 8.1.1(1)(i) concerns an offence or conduct committed in another country. That was not relevant, and I put it aside.
Paragraph 8.1.2 of Direction 110 addresses the risk to the Australian community should the Applicant reoffend or engage in other serious conduct.
The Applicant properly accepted that the nature of harm, if he committed the same offences again, is serious to individuals and to the Australian community.[49] The Applicant relied however on several factors which, he said, should cause me to find the risk of further offending to be low.
[49] Applicant’s statement of facts and contentions dated 27 January 2025 at [43]
First, on the evidence, the Applicant has not used illicit drugs since 6 March 2024 which is a period of approximately 11 months. This was to be noted in the context of the Applicant’s offending being primarily related to his drug addiction. The Applicant acknowledged his non-using’ was in the context of being in prison from that date until released on parole, but submitted this factor still carried weight because, he said, illicit drugs are freely available in prison but, he said, he did not obtain them or use them.
Second, the Applicant acknowledged his offending is unacceptable. This, as I understood it, was a submission in terms of remorse and contrition.
Third, prior to his workplace injury and commencement of his criminal offending in 2018, the Applicant was in stable employment. The Applicant also relied on his work in prison where he packed lollies and did carpentry to evidence his ability to work. In his statutory declaration, the Applicant said he “can’t do any heavy lifting, but I can do cleaning or office work”.[50] The Applicant relied on these circumstances to evidence his ability to work and, as I understood it, therefore not to reoffend.
[50] Applicant’s second statutory declaration at [2]
Fourth, the Applicant engaged with a psychologist whilst in prison. This, as I understood it, was relied on as evidence to show the Applicant’s willingness to address and overcome his drug addiction.
Fifth, the Applicant has participated in drug rehabilitation and support programs and, he said, was seeking employment following his release from custody. The Applicant has also identified ongoing drug rehabilitation programs and support systems that, he said, he intended to engage with.
Ms Battisson stated the Applicant wishes to settle permanently in Australia and “is committed to re-integrating into the Australian community”.[51]
[51] Applicant’s statement of facts and contentions dated 27 January 2025 at [46]
The Applicant relied on a report from Dr Kwok, clinical and forensic psychologist, in which Dr Kwok said that the Applicant’s offending is connected to his substance use and addiction. Dr Kwok states:
If [the Applicant] is released from detention, it is recommended that he attend at least weekly individual drug and alcohol counselling sessions for the first three months of returning to the community. If [the Applicant] is able to remain abstinent in the community for three months, he will be in the early stage of remission in the community.[52]
[52] Exhibit A4
The Applicant acknowledged the harm to the community that would occur if he committed the same offences again and accepted this weighed against revocation,[53] but submitted this consideration was not determinative. I understood this submission to be based on the several above-described factors to evidence his intention to reform.
[53] Applicant’s statement of facts and contentions dated 27 January 2025 at [48]
With reference to paragraph 8.1.2, the Minister referred to the harm to the community were the Applicant to reoffend. The Minister referred to the harm to future victims were he to sexually reoffend, financial harm to owners of property were he again to shoplift, possible physical and/or psychological damage to road users (which could be extremely serious) were he to commit further driving offences and the many kinds of harm to the community that are likely to arise from his possession and use of illicit drugs.
The Minister referred to and relied upon the sentencing remarks of the Court about the Applicant’s relapse into methylamphetamine use and his shoplifting to fund his drug habit. The Minister also referred to and relied upon the Applicant’s frequent and consistent breach of Court orders that involve not just breaches by way of non-compliance with Court orders but breaches involving further criminal offending. The Minister submitted the Applicant’s behaviour demonstrates Court orders have not deterred him from re-offending and there is therefore an overall significant risk of further reoffending.[54]
[54] Respondent’s amended statement of facts and contentions dated 27 January 2025 at [41]
The Minister noted that in the Sentencing Assessment Report dated 20 February 2024 the risk of the Applicant reoffending was assessed as “Medium-High”.[55] The community corrections officer who wrote the report assessed the Applicant as –
unsuitable to undertake community service work [because his] current unaddressed drug use … poses a risk to the safety and well-being of other participants.[56]
[55] HB 656
[56] HB 657
On 1 March 2024, the community corrections officer wrote a “breach report” arising from his failure to report to Liverpool community corrections in breach of his CCO. The report notes the Applicant admitting to continuing use of methylamphetamines and that, despite his engagement with the MERIT program, “he is still engaged in illicit substance use”. The Court noted he was removed from the MERIT program due to non-compliance. The community corrections officer recommended a warrant be issued for the following reason:
[H]is whereabouts are currently unknown. [The Applicant’s] presentation and compliance has declined and he appears to have no regard for the conditions of his order.[57]
[57] HB 581
The Minister relied on the concessions of the Applicant’s legal representative in the proceeding before the Court that the Applicant’s engagement was “sporadic” and demonstrated his motivation “to a borderline degree with respect to rehabilitation”.[58]
[58] HB 290
The Minister noted the Applicant’s claim that he completed an Odyssey House program, being a drug and alcohol program, in 2023 when he was released on parole but the absence of any corroborating evidence of having done so. The Minister also relied on the Applicant’s continuing use of illicit drugs subsequent to the claimed completion of that program.
The Applicant’s submissions as to why I should find a risk of further offending to be low were unpersuasive. His past conduct contradicts the prospect of him not reoffending. Having regard to the nature and extent of the Applicant’s criminal offending, especially the repeat offending; the opinions expressed by the Court; the sentencing assessment report, the reports from the community corrections officer and the professional opinion of Dr Kwok, I consider there to be a medium to high risk of the Applicant committing further crimes of the same or similar kinds to those committed over the past six years were he to remain in Australia.
The Applicant’s seeming indifference to the criminality of his conduct or the consequences of it to him and to others who are at risk of harm consequent on his criminal acts, evidenced by his ongoing criminal offending after conviction and sentence for earlier offending in breach of Court orders, is particularly worrying.
Protection of the Australian community from harm as a result of criminal or other serious conduct is the first of the primary considerations that must be taken into account, and to which I gave greater weight than to the other primary considerations, when deciding whether to revoke the cancellation. Where I consider there is a medium to high risk of the Applicant committing further crimes that would harm the Australian community were he to remain in Australia, this consideration weighed heavily against revocation.
The second primary consideration in paragraph 8 of Direction 110 is whether the Applicant has engaged in conduct that constituted family violence. The Applicant submitted there is no evidence of him doing so and this consideration should therefore be put aside.
The Minister disagreed, with reliance on a NSW Police Force report dated 27 February 2018,[59] which records details of a call made by someone reporting that the Applicant tried to hit his then domestic partner (the victim) with his vehicle. The Minister submitted that, notwithstanding the Applicant not being charged or convicted, his conduct constituted family violence for the purposes of paragraph 8.2(2)(b) of Direction 110 because the police report was evidence from an “independent and authoritative” source indicating the Applicant has been involved in “the perpetration of family violence”.
[59] HB 561
For the purpose of Direction 110, “family violence” is a defined term:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.
The definition then gives “examples of behaviour that may constitute family violence”.
The Minister accepted the Applicant’s alleged attempt to hit the victim with his vehicle did not constitute coercive or controlling behaviour, but contended it “caused the family member to be fearful”. This, the Minister said, was self-evident.
I was not persuaded by this submission. The Minister acknowledged there is no evidence of what occurred, save for the Police report. In particular, there is no evidence about relevant matters such as speed at which the vehicle was driven, how close it came to the victim or whether she needed to take any evasive action.
The report records the Police attended the victim’s residential address without notice. Who reported the matter to the Police is unstated. The report records the victim did not mention the Applicant’s alleged conduct to the Police. It records “she does not hold fears for her safety”. The report records the victim only wanted the Police to call the Applicant and ask him no longer to contact her. The report records “the victim was adamant that no offence took place and she is not fearful of her safety”. The report continues “nil fears held by victim: nil fears held by police”. The Applicant was not charged. On the evidence, I was not persuaded the Applicant’s conduct caused the victim “to be fearful”.
I accept that to drive a vehicle at a person likely constitutes violent or threatening behaviour, but where “family violence” is a defined term to “mean” behaviour of this kind that has either of two consequences and neither consequence is made out on the evidence, I was not satisfied the Applicant engaged in family violence as defined. I therefore put this primary consideration aside.
The third primary consideration is the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3 details this consideration as follows:
8.3. The strength, nature and duration of ties to Australia
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Paragraph 8.3(1) is irrelevant because the Applicant does not have any immediate (or other) family members in Australia.
Regarding paragraph 8.3(2), the Applicant relied on his arrival in Australia on 26 January 2013 and that he has resided here since, for a period of approximately 12 years.
Ms Battisson also relied on the Applicant’s engagement with his church community and his volunteer work to help maintain the church and at church events.[60] I took this to be a reference to the following statement in the Applicant’s statutory declaration:
Before I was arrested and before my drug use increased, I use[d] to volunteer. For example, at the Berala Anglican Church I helped with construction and maintenance and at their community markets.[61]
[60] Applicant’s statement of facts and contentions dated 27 January 2025 at [54]
[61] Applicant’s first statutory declaration at [31]
I noted and accepted evidence that in 2016 the Applicant involved himself in the Berala Anglican Church,[62] but I was not taken to any evidence (for example a statement from anyone at the Berala Anglican Church) detailing the extent or frequency of volunteer work done with the church. Also, it would seem these claims relate to a time prior to 2018. Save for the letter from the prison chaplain at the Bathurst Correctional Centre, I was not taken to any evidence of the Applicant after 2018 engaging with a church or with anyone who practised the Christian faith.
[62] HB 279
The Minister noted the absence of any evidence corroborating the Applicant’s work history or his contribution to the community by way of employment or in any other way. The Minister noted the absence of any statement from anyone regarding any social or other ties the Applicant has developed during his residence in Australia. The Minister acknowledged that not to revoke would likely have some adverse impact on the Applicant’s friends, although there was no evidence from any friend to that effect. The Minister submitted the third primary consideration weighed only “slightly in favour” of revocation.[63]
[63] Respondent’s amended statement of facts and contentions dated 27 January 2025 at [61]
Regarding employment, despite the dearth of evidence, I accept the Applicant worked in different capacities during the first six years after he arrived in Australia, but (as Ms Battisson acknowledged) he has not worked for the past six years. Little was stated about his means of support, save for social security benefits and extensive stealing from the community. The Applicant stated he could “get work easily”[64] and pointed out that he worked as a painter and has his “construction white card and EWP ticket (elevated work platform)” but his work history evidences his unwillingness or incapacity to do so.
[64] Applicant’s first statutory declaration at [29]
Where the Applicant has not worked for the past six years, even if arising from his drug addiction, and where I am not satisfied his addiction is in remission, I think it more likely the Applicant would return to unemployment benefits and stealing to support himself rather than paid employment if released into the community. Employment in the construction industry also appears doubtful where the Applicant states he “can’t do any heavy lifting” and claims an ability to do cleaning and office work. In my view, nothing regarding his past employment six years ago or the availability of prospective work in the community weighs in favour of revocation of the cancellation of the Applicant’s protection visa.
Regarding accommodation, the Applicant initially stated he has a friend, Mr Haggo, who the Applicant knows from Iran, and that he could live with Mr Haggo, but later explained that was no longer an option. He stated he was “arranging with social housing to help [him] get [his] own place”,[65] although there was no evidence from social housing on that subject. In all, I placed little weight on prospective accommodation as a matter in favour of revocation.
[65] Applicant’s second statutory declaration at [2]
Regarding impact of the revocation on the Applicant’s immediate family members in Australia, there is no impact because there are no such family members.
I took into account that the Applicant arrived in Australia aged 31, not as a young child. He has been in Australia for approximately 12 years. This duration weighed lightly in favour of revocation, but the strength and nature of his ties to the Australian community that have developed over the past 12 years weighed against revocation.
Save his attendance at church in 2016, I was not taken to any evidence to suggest the Applicant has made a positive contribution to the Australian community. There was no statement from anyone about the Applicant having a friendship with anyone living in Australia or having community ties to any aspect of the Australian community. Rather, the evidence suggests the Applicant has been a burden on the community in terms of supporting him through largely unsuccessful attempts to manage his drug addiction and suffering the consequences of his drug addiction especially in terms of his repeated stealing from the community and his other repeated criminal offending.
In my view, on balance, the strength, nature and duration of the Applicant’s ties to Australia weighed against revocation.
The fourth primary consideration in paragraph 8 is the best interests of minor children in Australia. This consideration is irrelevant because the Applicant does not have any minor children in Australia.
The fifth primary consideration is the expectations of the Australian community. Paragraph 8.5 details this consideration as follows:
8.5. Expectations of the Australian Community
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, 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 is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Paragraph 8.5(1) is a revision of paragraphs 11.3 and 13.3 of an earlier Minister’s direction, Direction 65, which commenced on 22 December 2014 and was revoked on 28 February 2019. Paragraphs 11.3 and 13.3 were materially identical: the former dealt with refusal of a visa and the latter dealt with cancellation of a visa. In Direction 110, both circumstances are dealt with in paragraph 8.5(1).
In Direction 65, there were three primary considerations when deciding whether to revoke the mandatory cancellation of a non-citizen’s visa. The third was identical to the fifth primary consideration, expectations of the Australian community, in Direction 110.
Paragraph 13.3 of Direction 65 detailed the primary consideration, expectations of the Australian community, as follows:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In Ayache,[66] DP Forgie noted the observations of the Federal Court, per Mortimer J (as she then was) in YNQY and Minister for Immigration and Border Protection (YNQY) on how paragraph 13.3 should be understood. Her Honour said:
In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.[67]
[66] [2018] AATA 310 at [60]
[67] [2017] FCA 1466 at [76]
In Uelese v Minister for Immigration and Border Protection54 (Uelese), the Federal Court, per Robertson J, said:
In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. … The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect. … In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.[68]
[68] [2015] FCA 358 at [64]-[65]
That position of principle has not changed.
In FYBR v Minister for Home Affairs (FYBR), Charlesworth J sitting as a member of a Full Court of the Federal Court commented on paragraph 13.3’s counterpart, paragraph 11.3, as follows:
… cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations” listed non-exhaustively in cl 12. The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.[69]
[69] [2019] FCAFC 185 at [75]-[76]
I refer also to Stewart J’s explanation of community expectations in FYBR:
100.To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
1)non-citizens will obey Australian laws when in Australia;
2)it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
3)in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
101.Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.
In HSRN and Minister for Immigration, Citizenship and Multicultural Affairs, the AAT, per DP Cowdroy AO KC, commented on paragraph 8.4(1) in (later) Direction 90 that dealt with expectations of the Australian community. DP Cowdroy said:
44. Paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
...
46. The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
47. This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).[70]
[70] [2022] AATA 4377
Paragraph 8.5(1) in Direction 110 is identical to paragraph 8.4(1) in Direction 90. I therefore regarded DP Cowdroy’s observations regarding paragraph 8.4(1) to be applicable to paragraph 8.5(1) in Direction 110. In particular, “as a norm”, in the circumstances described in paragraph 8.5(1), the Australian community expects the Australian Government not to allow such a non-citizen to remain in Australia. As Robertson J stated in Uelese, the Tribunal (on review) may act on that statement which, in my view, weighs against revocation.
Paragraph 8.5(2) in Direction 110 notes that in some cases non-revocation of the mandatory cancellation of a visa may be appropriate “simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa”. In this case, I did not regard the Applicant’s criminal offences to be “decisive” on whether his protection visa should remain cancelled. I weighed in the balance all considerations, with priority to the primary considerations, when deciding whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
I turn to the three non-exhaustive “other considerations” in paragraph 9: legal consequences of the decision, extent of impediments if the Applicant is removed; and the impact of the decision on Australian business interests. Details concerning these three other considerations are provided in paragraphs 9.1 (including 9.1.1 and 9.1.2 concerning non-citizens covered or not by a protection finding), 9.2 and 9.3, respectively, which I took into account.
Regarding legal consequences, the Applicant is covered by a protection finding. The parties agreed, and I accepted, that for this reason the Applicant cannot be removed to Iran because of Australia’s non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights and its Second Optional Protocol.[71] The more difficult question was how to weigh that circumstance when deciding whether to revoke.
[71] Applicant's statement of facts and contentions dated 6 January 2025 at [9]; Respondent’s amended statement of facts and contentions dated 21 February 2025 at [69]
Consequent on cancellation of the Applicant’s protection visa, upon his release from prison on parole, the Applicant was detained in immigration detention under section 189 of the Act. Subject to s 198AE of the Act (and other sections), this triggered an obligation on an officer under s 198AD(2) of the Act to take the Applicant “from Australia to a regional processing country”.
On 10 February 2025, pursuant to s 198AE of the Act, the Minister made a determination that s 198AD does not apply to the Applicant. In accordance with s 198AE(4) of the Act, the Minister made a statement that he considered it in the public interest to make that determination. The Minister added:
This determination will enable the Department to progress removal of [the Applicant] from Australia to their country of origin or another country to which they have right of entry in accordance with section 198 of the Act.
In conjunction with that determination, on 10 February 2025, the Applicant was granted a Class WR Bridging R (Removal Pending) (subclass 070) visa (a BVR), which came into effect that day.[72] Pursuant to the BVR, the Applicant was released from immigration detention.[73]
[72] Exhibit A2
[73] Exhibit A1
Under clause 070.511 of Schedule 2 to the Migration Regulations 1994 (the Regulations), the BVR permits the Applicant to remain in Australia but ceases at the earliest of the following:
a. the Minister giving the Applicant written notice that the Minister is satisfied that the Applicant’s “removal from Australia is reasonably practicable”;
b. the Minister giving the Applicant written notice that the Applicant “has breached a condition to which the visa is subject”;
c. the Minister granting the Applicant another BVR.
The conditions to which the BVR is subject relevantly include that the Applicant:
1) “must not become involved in activities disruptive to, or violence threatening harm to, the Australian community”;
2) “must do everything possible to facilitate his … removal from Australia; and must not attempt to obstruct efforts to arrange and effect his … removal from Australia”;
3) “must not engage in criminal conduct”.
As I understand it, upon cancellation of his protection visa on 31 May 2024, subsequent to being released from prison on parole and prior to 10 February 2025, the Applicant was being detained in immigration detention pending removal from Australia with, arguably, no real prospect of being released from detention in the reasonably foreseeable future consequent on the inability to remove him to Iran. To detain him in this circumstance risked being unlawful, consequent on the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ).[74] The grant of the BVR to the Applicant, by which the Applicant was released from immigration detention on conditions, can be understood as the Minister’s response to this risk.
[74] [2023] HCA 37
The Applicant submitted the conditions and temporary nature of the BVR may reduce his ability to secure a home loan or car loan or to secure employment. The Applicant relied on a decision of the Administrative Appeals Tribunal (the AAT) in LVMF and Minister for Immigration, Citizenship and Multicultural Affairs[75] in which the AAT noted the conditions of a BVR could not be disregarded in an assessment of the legal consequences of a decision to cancel the non-citizen’s visa or the fact that he would be unable to obtain an ABN should he wish to set up a business. The AAT commented that the monitoring and curfew conditions constituted a material imposition on the applicant’s freedom and privacy which may create a sense of “perpetual surveillance”. I note the Applicant must notify his residential address and must attend a requested interview that relates to his BVR, but monitoring and curfew conditions have not otherwise been imposed.
[75] [2023] AATA 4126
The Applicant noted the grant of the BVR permits the Respondent to remove the Applicant to a third country. The Applicant submitted the only country to which (at present) that could prospectively occur is Nauru.
In support, the Applicant relied on a media release issued by the Minister on 16 February 2025 announcing that Nauru would be resettling three persons from a group of persons described as the “NZYQ cohort” under a new arrangement with the Australian Government.[76] The media release records the Government of Nauru has issued long-term resettlement visas to the three members of the NZYQ cohort. The media release goes on to record those three members were taken back into immigration detention because there was now a real prospect of their removal from Australia “meaning they are no longer affected by the High Court’s NZYQ ruling and have therefore been detained”.[77]
[76] Exhibit A3
[77] Exhibit A3
The media release continued:
There is nothing more important to this Government than community safety. The NZYQ cohort consists of people who broke Australian laws and in doing so surrendered their rights to stay in Australia.
The Applicant submitted he was in a materially similar position to those facing removal to Nauru. From there, the Applicant submitted it would be oppressive to remove him to Nauru where he does not know anyone and faces the risks of violence and damage to his mental health. The Applicant acknowledged however there are presently no arrangements for him to be removed to Nauru or anywhere else.
The Applicant nevertheless relied on the circumstance that under the BVR the Minister could remove the Applicant from Australia despite the Applicant knowing nothing about the country to which he would be taken, the language or culture of the country to which he would be taken or the support networks or employment opportunities that would be there. The Applicant noted whether he could bring his son to visit him in the country to which he is taken, or leave the country to visit his son, is unknown. The Applicant submitted he should not be exposed to the risk of these “dire circumstances”, as they were described during the hearing. The Applicant submitted the cancellation of his protection visa should be revoked to remove that risk.
The Minister noted the BVR permits the Applicant to live in the community, having been released from immigration detention. It does not prevent him from working (except in certain occupations) and he has access to health care via Medicare. The Minister acknowledged that if the cancellation of his protection visa is not revoked, the Applicant would be prevented from making a further application for a protection visa while he is in the migration zone (unless the Minister determines otherwise). The Minister also noted that if the Tribunal affirmed the cancellation, the Applicant would be able to remain in the community on the BVR on the conditions stated in the BVR.
The Minister submitted that where the Applicant will not be removed to Iran by reason of Australia’s non-refoulement obligations and has been released into the community on conditions, the legal consequences of the decision to cancel his protection visa weighs only “moderately in favour”[78] of revocation.
[78] Respondents amended statement of facts, issues and contentions dated 21 February 2025 at [77]
The Applicant’s submissions arising from the issuance of the BVR were not persuasive. But for the High Court’s decision in NZYQ, the Applicant would likely be in immigration detention (if not in prison) consequent on the cancellation of his protection visa pending Government consideration of whether to remove him from Australia and, if so, to where.
The main effect of the BVR is that it enables the Applicant to be, instead, lawfully in the community subject to conditions that will help enable the Government to keep the community safe and to know the Applicant’s whereabouts from time to time, as best it is able pending Government consideration of those questions.
The BVR does not create the possibility of the Applicant’s removal from Australia: that possibility already existed consequent on the cancellation of his protection visa. All it adds regarding removal is his obligation to facilitate his removal from Australia as a condition of release from immigration detention, together with other (in my view) inherently reasonable conditions to help to keep the community safe.
The Applicant is unaware of any plans or arrangements to remove him from Australia. I was not taken to any evidence to suggest otherwise. He is in a position quite different to the three members of the NZYQ cohort referred to in the Minister’s press release who have been issued long-term resettlement visas to enable their removal from Australia to Nauru. That the Applicant might be issued with a long-term resettlement visa to enable him to be removed from Australia to Nauru is at present no more than a possibility.
In the context of whether to revoke the cancellation of the Applicant’s protection visa, I weighed removal from Australia only lightly in favour of revocation where that consequence is, at present, no more than a possibility. In any event, even if Nauru or any other country to which the Applicant might be removed could be reasonably regarded as a place less desirable than Australia, I weighed that consideration only lightly in favour of revocation where to revoke would be to preclude removal to a country that is considered appropriate by the Australian Government.
The Applicant drew on the impositions on the Applicant’s liberty and privacy under the BVR. I weighed these impositions only lightly in favour of revocation in circumstances where the Applicant BVR regularises his release into the community with an extensive history of serious criminal offences and, in my view, a medium to high risk of him reoffending. To revoke the cancellation of his protection visa would enable him to be in the community without any conditions to assist in protecting the community from harm, save for those imposed through the criminal justice system in response to further offending.
The Applicant’s submissions regarding the impediments arising from the temporary nature of a BVR were also unpersuasive. The Applicant has not worked for six years and supports himself through receipt of unemployment benefits and stealing. Accordingly, the prospect of him obtaining a loan to buy a house or a car is remote, regardless of the BVR. Likewise, there was no evidence or suggestion of the Applicant wanting to set up a business, and therefore wanting an ABN, meaning the limitation on him doing so arising from the BVR is of little consequence.
I weighed the Applicant’s wish to bring his son to live with him in Australia, and his concerns about whether he could bring his son to another country to which the Applicant had been removed, only lightly in favour of revocation because there was no evidence about the prospect of that occurring regardless of the revocation of his protection visa. For example, there was no evidence from the Applicant’s son about wanting to leave his home to come and live in Australia (or anywhere else) or the legal prospects of him being able to do so, even if that is his wish.
For these reasons, I concluded the legal consequences of the decision under review weighed only lightly in favour of revocation.
Regarding the second ‘other consideration’ under paragraph 9(1)(b) of Direction 110, the extent of impediments if the Applicant is removed to his home country, the consideration did not arise because, as the Minister acknowledged, the Applicant will not be removed to Iran.
Regarding the third ‘other consideration’ under paragraph 9(1)(c) of Direction 110, impact on Australian business interests, both parties submitted there is no evidence there would be any such impact and that this consideration is either not applicable or neutral. I accepted the submission and did not regard this consideration to be relevant.
APPLICATION OF DIRECTION 110
The weighing exercise required me to address the precise circumstances of the individual case. Counsel for the Minister relied on the observations of the Court in CRNL regarding consideration of the relevant matters. The Court said:
34 … in order to meet the requirements of the Direction, the Tribunal had to undertake a process of balancing the different considerations, or evaluating them against and in comparison to each other, in order to arrive at a decision whether there is “another reason” to revoke the cancellation.
35. The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.[79]
[79] [2023] FCAFC 138 at [34]-[35]
Arising from the first primary consideration, paragraph 8.1(1) required me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. That priority reinforces the second principle in paragraph 5.2 of Direction 110. When weighing the competing considerations, I was required under paragraph 6 to be informed by the principle that remaining in Australia is a privilege that Australia confers on non-citizens (in this case the Applicant) in the expectation that they are law-abiding, respect Australian institutions and will not cause or threaten harm to individuals or the Australian community. The Applicant, by his repeated criminal conduct, abused that privilege and, in my opinion, is likely to continue to abuse that privilege. The first primary consideration weighed heavily against revocation.
The first principle in paragraph 5.2 and the fifth primary consideration (expectations of the Australian community) are about character concerns that give rise to the question whether the non-citizen should be allowed to remain in Australia. In this case the Applicant failed the character test on several grounds: he has a substantial criminal record; he is in my opinion a person not of good character; and in my opinion, if he remained in Australia, there is a medium to high risk he will reoffend. These considerations weighed heavily against revocation.
I accepted the Applicant’s criminal conduct derives from his drug addiction which derives from his earlier extensive use of prescribed painkillers, but that does not excuse his conduct. Most people do not choose to become drug addicts and are often the victim of circumstance, but that does not excuse their criminal offences that harm the community and have done so in this case. I drew support for that view from the Court convicting the Applicant of many offences and sentencing him to a lengthy term of imprisonment, notwithstanding the Court’s acknowledgement of his offending arising from his addiction.
I weighed in the balance the several considerations in favour of revocation dealt with above, but regarded them as lightly weighted for the reasons given.
When weighing the different considerations, I gave protection of the Australian community the highest priority. Where I regarded the Applicant’s crimes as serious, I had regard to the norm that the Applicant should not be allowed to remain in Australia. The first and fifth primary considerations weighed heavily against revocation. In particular, the medium to high risk of him reoffending to cause further harm to the Australian community weighed heavily against revocation.
Individually and/or collectively, I was not persuaded the considerations in favour of revoking the cancellation outweighed the primary considerations which weighed heavily against revocation. Having balanced and evaluated the competing considerations, I was not persuaded there is another reason why the cancellation of the Applicant’s protection visa should be revoked.
DECISION
Where the Applicant did not pass the character test and I was not satisfied there is another reason for why I should revoke the cancellation of the Applicant’s visa, the power to revoke the cancellation was not enlivened. I therefore affirmed the decision under review with the result that the Applicant’s protection visa remains cancelled.
I certify that the preceding 167 (one hundred and sixty-seven)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
G McCarthy
[sgnd]
……………………………..
Associate
Dated: 19 March 2025
Dates of hearing: 24 and 25 February 2025
Advocate for the Applicant: A Battisson
Advocate for the Respondent: K Tang
Solicitor for the Applicant: Heretic Law
Solicitor for the Respondent: Hunt & Hunt
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