MQKW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 4667

MQKW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4667 (19 November 2021)
Division:GENERAL DIVISION
File Number(s): 2021/5695
Re:MQKW
APPLICANT

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

DECISION
Tribunal:Senior Member Linda Kirk
Date:19 November 2021
Date of written reasons: 16 December 2021
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the reviewable decision made by the delegate of the Respondent dated 27 August 2021 that the mandatory cancellation of the Applicant’s visa under section 501(3A) of the Migration Act 1958 (Cth) not be revoked under section 501CA(4) of the Migration Act 1958 (Cth).
..................................[SGD]......................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – mandatory cancellation – failure to pass the character test – Direction 90 – primary considerations – protection of Australian community – best interests of minor children – expectations of Australian community – other considerations – impediments if removed from Australia – temporary visa holder – links to Australian community – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Migration Act 1958 (Cth) ss 501, 501CA
CASES
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR and Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Jal v Minister for Immigration and Border Protection [2016] AATA 789
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2227
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
WRITTEN REASONS FOR DECISION
Senior Member Linda Kirk
16 December 2021

MQKW (‘the Applicant’) is a 28 year old citizen of Malaysia,[1] who first arrived in Australia in March 2015.[2] On 9 June 2015, the Applicant was granted a Class TU Subclass 572 Vocational Education and Training Sector visa.[3] This visa was cancelled on 9 March 2017 due to the Applicant not having been enrolled in a registered course of study from 30 June 2016.[4]
[1] Exhibit R2, 39.
[2] Exhibit R2, 171.
[3] Exhibit R1, Annexure 3.
[4] Exhibit R1, Annexure 3.
Between 22 May 2017 and 20 July 2018, the Applicant applied for a Class XA Subclass 866 Protection visa on three occasions and was granted a bridging visa in association with those substantive applications.[5] On each occasion, the visa application was deemed invalid.[6]
[5] Exhibit R2, 135.
[6] Exhibit R2, 135.
On 2 October 2018, the Applicant made a valid application for a protection visa.[7] On 20 February 2019, a delegate of the Minister refused to grant the Applicant a protection visa on the basis that he did not meet the criteria in s 36(2) Migration Act 1958 (Cth) (‘the Act’).[8]
[7] Exhibit R2, 135.
[8] Exhibit R2, 135-145.
On 3 March 2019, the Applicant sought review of this decision in the Migration and Refugee Division of the Administrative Appeals Tribunal (‘the Tribunal’). This review application remains to be determined.
In November 2020, the Applicant was convicted in the District Court of New South Wales of two counts on an indictment for the offences:
·Supply prohibited drugs on an ongoing basis; and
·Supply prohibited drug > indictable & < commercial quantity.[9]
[9] Exhibit R2, 25-26 and 190-191; See also ss 25 and 25A of the Drug Misuse and Trafficking Act 1985 (NSW).
The Applicant was also convicted of two other offences under the “Form 1 procedure” in the Crimes (Sentencing Procedure) Act 1999 (NSW):
·Deal with property proceeds of crime < $100,000; and
·Possess prohibited drug.[10]
[10] Exhibit R2, 25-26 and 190-191.
The Applicant was sentenced to 15 months’ imprisonment in respect of the first count (including the proceeds of crime offence) and 12 months’ imprisonment in respect of the second count (including the possession offence).[11] Those terms were ordered to be served partly concurrently with and cumulative upon one another, such that the total effective sentence was 18 months’ imprisonment.[12] The non-parole was set at nine months, making the Applicant eligible for parole on 29 February 2021.[13]
[11] Exhibit R2, 25, 30 and 190.
[12] Exhibit R2, 29-30.
[13] Exhibit R2, 29-30.
On 15 December 2020, the Applicant’s Class WC Subclass 030 Bridging C visa was cancelled under s 501(3A) of the Act (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied he did not pass the character test in s 501(6) of the Act as he was considered to have, pursuant to subsection 501(7)(c), a ‘substantial criminal record’.[14] At the time the Applicant was serving a sentence of full-time imprisonment at Geoffrey Pearce Correctional Centre for offences against the law of New South Wales.[15]
[14] Exhibit R2 197-199.
[15] Exhibit R2, 8.
The Applicant was notified of the Mandatory Visa Cancellation Decision in accordance with s 501CA(3) of the Act, and invited to make representations to the Minister about revocation of the Decision.[16]
[16] Exhibit R2, 32-38 and 200-202.
On 17 December 2020, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[17]
[17] Exhibit R2, 39-62 and 203-208.
On 27 August 2021, a delegate of the Respondent decided, pursuant to s 501(CA)(4) of the Act, not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[18]
[18] Exhibit R2, 7-19.
On 27 August 2021, the Applicant applied to the Tribunal for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.[19]
[19] Exhibit R2, 1-3.
The review application was heard by the Tribunal on 8 November 2021. The Applicant attended the hearing by video-conference from Villawood Immigration Detention Centre (‘VIDC’) and was represented. The Applicant gave oral evidence and was cross-examined at the hearing.
The following material was before the Tribunal:
- Respondent’s Statement of Facts Issues and Contentions (‘Exhibit R1’);
- Section 501G-Documents filed 16 September 2021 (G1-G18, Pages 1-240) (‘Exhibit R2);
- DFAT Country Information Report for Malaysia (Pages 1-67) (‘Exhibit R3’);
- Applicant’s Statutory Declaration dated 3 November 2021 (2 pages) (‘Exhibit A1’);
- Undated series of text messages and communications between Applicant and his partner (‘Exhibit A2’);
- Notice of Appearance filed 11 August 2021 (1 page) (‘Exhibit A3’); and
- Progress Report of psychologist Kenny Lau dated 20 October 2021 (‘Exhibit A4’).
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(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)…; 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.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)…
(b)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
…
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(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.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[20]
[20] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[21]
[21] Direction, at [2]-[3].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable 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 measureable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2, a
decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘… information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[22]
[22] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another[23] at [57]:
… the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.
[23] (2016) 241 FCR 461.
ISSUES FOR DETERMINATION
Before the power in sub-section 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by sub-section 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,[24] the Full Court of the Federal Court of Australia made the following observations in relation to sub-section 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[25]
[24] [2018] FCAFC 151.
[25] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Background and study in Australia
The Applicant was born in Malaysia in 1993.[26] He first entered Australia in March 2015 when he was aged 21 years.[27] Following the grant of his student visa in June 2015 the Applicant was enrolled in Business Management at Berkley Business Institute.[28] The Applicant told the Tribunal that he was unable to repay the loan for his student fees as the income he was earning from his part-time job was only enough to pay his rent and living expenses.[29] He was not enrolled in a course of study from 30 June 2016 and his student visa was cancelled on 9 March 2017.[30] Following the cancellation of his visa, the Applicant was no longer permitted to work in Australia.[31] In his Personal Circumstances Form the Applicant wrote that he worked as tiler from 2017 to 2019.[32]
[26] Exhibit R2, 171.
[27] Exhibit R2, 171.
[28] Exhibit R1, Annexure 3.
[29] Transcript of proceedings, 8 November 2021, 19, 20.
[30] Exhibit R1, Annexure 3.
[31] Transcript of proceedings, 8 November 2021, 20.
[32] Exhibit R2, 54.
Relationships and drug use
The Applicant met his ex-girlfriend in early 2016 and she introduced him to ‘ice’ methamphetamine smoking.[33] After they separated, he formed a relationship with his current partner, LLT, in mid-2016. The Applicant told the Tribunal that he did not use drugs when he was first with LLT, but he resumed taking drugs in 2019.[34]
[33] Transcript of proceedings, 8 November 2021, 20, 21.
[34] Transcript of proceedings, 8 November 2021, 25.
In November 2020, the Applicant told psychologist, Dr Mark Milic that his ice habit persisted during his relationship with LLT and that drugs made him ‘feel so bad and ruined [his] life.’[35] His drug use also caused great distress to LLT. When he was using methamphetamines, he would stay awake for two or three days and without it ‘he would become uncontrollably sleepy and very sad.’[36] He lost his job because of his ice habit and could not study. He then sold ice to support his habit.[37]
[35] Exhibit R2, 157.
[36] Exhibit R2, 157.
[37] Exhibit R2, 157-158.
The Applicant told the Tribunal that he has not taken drugs since he was incarcerated in December 2019.[38] He told Dr Milic, ‘[t]here is no way I would use again’. He told him that after one month of abstinence he noticed ‘his mind became clearer and he felt generally healthier.’[39]
[38] Transcript of proceedings, 8 November 2021, 26.
[39] Exhibit R2, 158.
Criminal history in Australia
The Applicant’s criminal history in Australia is set out in his National Criminal History Check dated 18 June 2021.[40]
[40] Exhibit R2, 23-24.
In July 2019, the Applicant was convicted in the Local Court of New South Wales of Shoplifting value <=$2,000 and received a $800 fine.[41] The offence was committed by the Applicant on May 2019 when he stole a handbag.[42]
[41] Exhibit R2, 24.
[42] Exhibit R2, 58 [3].
In November 2019 the Applicant was arrested for the offences Supply prohibited drugs on an ongoing basis and Supply prohibited drug > indictable & < commercial quantity – T1 and was released on bail. In December 2019, the Applicant was pulled over by police for a traffic offence and was found in possession of crystal methamphetamine. He was re-arrested and taken into custody where he remained until he was convicted and sentenced.

In November 2020, the Applicant was convicted in the District Court of New South Wales for these offences.[43] The sentencing remarks of Judge Sweeney and the District Court of New South Wales Statement of Facts and Circumstances outline the circumstances surrounding the Applicant’s offences. He was involved in the supply of 12.5 grams of methylamphetamine on six occasions between September 2019 and November 2019. Upon his arrest, police found $845 in a satchel in the footwell of his car, suspected as being the proceeds of crime, and a further 1.35 grams of crystal methamphetamine, which he stated was for his personal use.
[43] Exhibit R2, 24-26 and 190-191; See also ss 25 and 25A of the Drug Misuse and Trafficking Act 1985 (NSW).
In his Personal Circumstances Form dated 17 December 2020 the Applicant wrote that he made ‘a silly decision’ to sell drugs to pay for his own drug use and to cover his living expenses.[44] He told the Tribunal about the circumstances surrounding his offending:
… at that time because of the pressure from the life and I didn’t have a job at that time and because of the difficulties, I did the first offence in my life and I didn’t know that kind of offence led to that serious consequences.[45]
[44] Exhibit R2, 53.
[45] Transcript, 8 November 2021, 17.
In her sentencing remarks, Judge Sweeney accepted that the Applicant was a user-dealer, supplying drugs to finance his own drug use, and that the quantities involved were low.[46] Her Honour assessed the index offending to be at the lower end of the scale of seriousness.[47] However, she noted:
it has to be acknowledged that methylamphetamine, or ice, is a serious drug and a lot of people become addicted to it quite quickly and then the consequences for the community is further crimes are committed because of people using that drug, and [the Applicant] recognises that from his own use of the drug and from his time in prison.[48]
[46] Exhibit R2,27-28.
[47] Exhibit R2,27-28.
[48] Exhibit R2,27-28.
In June 2021 the Applicant was convicted in the Local Court of New South Wales of Goods in personal custody suspected being stolen (not motor vehicle), Dishonestly obtain property by deception, and Goods suspected stolen in/on premises (not motor vehicle), and he was sentenced to a 18 month community correction order. These offences arose from a search of the Applicant’s property by police in December 2019.[49]
[49] Exhibit R2, 24.
Remorse and responsibility for offending
The Applicant told Dr Mark Milic, the psychologist who assessed him in November 2020, that he was sorry for committing the offences and for upsetting his wife and daughter. He said he had learned from his own methamphetamine habit about the harm that methamphetamines could cause and felt guilty that his offences caused harm to people and the community.[50]
[50] Exhibit R2, 156.
The Applicant claims that he is remorseful for his offending, that he wishes to become a good husband and father, and that he will ‘definitely not’ reoffend.[51] In his revocation request he wrote ‘I know that I am doing something wrong that [sic] why I am in jail.’[52] He told the Tribunal:
I already knew that what I did was wrong, and I understand what was wrong and now I also regret about what I did wrongly before. And now I would definitely not reoffend the same offence again. So I just hope that I could get one more chance to be a good father.[53]
[51] Transcript, 8 November 2021, 16.
[52] Exhibit R2, 41.
[53] Transcript, 8 November 2021, 28.
Rehabilitation and risk of re-offending
In his report dated 26 November 2020, Dr Milic stated that the Applicant’s ‘mature attitude to the offences, commitment to abstinence from drugs and commitment to his wife and daughter indicates good prospects for rehabilitation.’[54]
[54] Exhibit R2, 158.
A pre-sentence report found that there is a medium risk of the Applicant reoffending. It stated that the Applicant required further rehabilitation to address his substance abuse problem as well as financial counselling because the ability to support his family was a factor in committing the offences. The Applicant expressed a willingness to attend rehabilitation programs.[55]
[55] Exhibit R2, 29.
The Applicant told the Tribunal that he did not undertake any counselling while he was in gaol because when he was sentenced there was less than three months remaining before he was eligible for parole. He also confirmed that he has not undertaken any counselling since he has been in immigration detention. He said that he did not know that counselling courses were available at VIDC and that he was able to attend them.[56]
[56] Transcript, 8 November 2021, 30-32.
The Applicant told the Tribunal that if he is released into the community, he would like to participate in the drug rehabilitation programs offered by the Salvation Army.[57]
[57] Transcript, 8 November 2021, 16.
Children
The Applicant and LLT have a daughter, C, who was born in July 2017. The day C was born was the ‘happiest day of [his] life.’[58] He told the Tribunal about his relationship with C:
we’re just alike (sic) a normal father and daughter. Our relationship is quite close and quite good, so we’re always together and I always bring her outside for meals, I bring her outside to play or to do shopping. So, can all the time, we’re always together.[59]
[58] Exhibit A1 [4].
[59] Transcript, 8 November 2021, 13.
Following his incarceration, the Applicant continued to speak with C on the phone and sometimes they had a video visit.[60] The Applicant told the Tribunal that he does not want C ‘to grow up in a situation that there is no dad with her in her childhood.’[61]
[60] Transcript, 8 November 2021, 14, 27-30.
[61] Transcript, 8 November 2021, 17.
The Applicant also has a step-son, E, who is LLT’s child from a previous relationship. He told the Tribunal that his relationship with E is ‘quite close’ and that he also would speak to him by phone and video calls following his incarceration.[62]
[62] Transcript, 14, 27-30.
In his Statutory Declaration dated 3 November 2021, the Applicant wrote that on 2 August 2021, C and E were ‘taken away’ into the care of the State of New South Wales.[63] He stated that he was ‘devastated’ when he learned about this as he could not be there to support his partner.[64] The Applicant told the Tribunal:
… when I heard about that, I felt quite nervous, quite sad and quite really helpless. I didn’t know what could I do.[65]
[63] Exhibit A1 [10]; Transcript, 8 November 2021, 29.
[64] Exhibit A1 [10].
[65] Transcript, 8 November 2021, 15.
The Department of Communities and Justice has commenced care proceedings in the Children’s Court and the Applicant wishes to participate in these proceedings. E’s biological father is involved in the proceedings.[66]
[66] Transcript, 8 November 2021, 50.
Applicant’s partner, LLT
The Applicant and LLT commenced a relationship in mid-2016. LLT faced difficulties following the Applicant’s incarceration. She spent almost all their savings, and was unable to obtain employment as she is a full-time mother to C and E. Her mental health suffered as a result of the Applicant’s incarceration and the responsibility of caring for the children.[67] Consultation notes of Kenny Lau, psychologist, dated 20 October 2021 record that LLT had been seen by him on five occasions since 23 August 2021, and that she was distressed following the removal of the children from her care.[68]
[67] Exhibit R2, 41, 59.
[68] Exhibit A4.
The Applicant told the Tribunal that LLT was arrested a few days before the hearing and that she may be taken before the drug court. He said that when she told him this, he ‘felt quite nervous and I didn’t know why she was arrested.’[69] But after giving it some thought he ‘thought that it might be a good thing for her because before, she was arrested because of the drug-related issues.’[70] He said he formed this view because:
if she continues to have the connection with the drugs, it’s not good to the children and also, it’s very hard for her to get the children back. Now, she has been sent to the drug court and now she can receive the treatment towards the drugs.[71]
[69] Transcript, 8 November 2021, 15.
[70] Transcript, 8 November 2021, 15.
[71] Transcript, 8 November 2021, 15-16.
Family in Malaysia
In his Personal Circumstances Form dated 17 December 2020 the Applicant wrote that his father, mother, brother and three cousins reside in Malaysia.[72]
[72] Exhibit R2, 52.
Future plans
The Applicant told Dr Milic that if he is released back into the community, he ‘wants to concentrate on finding a construction job and being a good husband and father.’[73]
[73] Exhibit R2, 158.
He told the Tribunal:
I hope that I can get one more chance so that I could be together with my daughter and I could remedy or make up the mistake I made and also for these 18 months that I was not been able to together with my daughter. I really love my daughter and I hope that I can be together with my daughter and accompany her in her childhood.[74]
[74] Transcript, 8 November 2021, 17.
Impediments on return
In his Personal Circumstances Form, the Applicant wrote that he is concerned about contracting COVID-19 if he returns to Malaysia as many people have died there. He is also worried about the loan sharks from whom he borrowed money in Malaysia who threatened the life of him and his family. He tried to hide from them when he was there, and he came to Australia to seek protection.[75]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[75] Exhibit R2, 56.
1)Does the Applicant pass the ‘character test’?
In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check dated 18 June 2021 regarding his criminal convictions and sentences. This report records that on 27 November 2020, the Applicant was convicted in the District Court of New South Wales of two counts on an indictment for the offences Supply prohibited drugs on an ongoing basis and Supply prohibited drug > indictable & < commercial quantity and sentenced to an aggregate term of 18 months’ imprisonment.
The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 15 December 2020, the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the state of New South Wales.
Having found that the Applicant does not satisfy the character test, the Tribunal finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must, in accordance with paragraphs 8 and 9 of the Direction, take into account the relevant ‘primary considerations’ and ‘other considerations’.
PRIMARY CONSIDERATIONS
Primary Consideration 1 – Protection of the Australian community
Reiterating the general guidance and principles in the Direction, paragraph 5.2 states:
…
(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; and
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage 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.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also 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.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious
(i)…
(ii)…
(iii)…
(iv)…
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false of misleading information to the Department, including by not disclosing prior criminal offending;
...
Having regard to the factors in paragraphs 8.1.1 of the Direction, the Tribunal finds that the offences for which the Applicant was convicted in November 2020 are serious. The offences arose from the Applicant’s involvement in the sale and distribution of illicit drugs between September 2019 and November 2019. Offences involving the supply of illicit drugs, especially methylamphetamine, have a deleterious impact on both their users and the community in terms of health consequences and associated criminal activity. Whereas Judge Sweeney found that the quantities of each instance of drug supply were small, as she noted, it must be recognised that methylamphetamine is a ‘serious drug’ due to its addictive nature, and the consequences for the community that follow from the commission by users of the drug of further crimes.
Having regard to paragraph 8.1.1(1)(c) of the Direction, the custodial sentences imposed on the Applicant by the courts for his offending are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved.[76] The Applicant’s index offences were considered to be of sufficient seriousness for Judge Sweeney to consider it appropriate to impose terms of imprisonment, although the terms imposed were at the lower end of the scale.
[76] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].
In relation to the factors in paragraph 8.1.1(1)(d) and (e), the Applicant engaged in a sustained period of criminal offending with a trend of increasing seriousness from May to December 2019. The offending began with the relatively less serious offence of shoplifting in May 2019 and escalated to the commission of serious offences involving the supply of illicit drugs over the three-month period from September to December 2019.
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is serious in nature, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harms increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that any similar reoffending by the Applicant in the future may involve serious harm to his victims and the community.In addition to the insidious harm caused by methylamphetamine use on both the user and their families, there is the cost of drug-related crime upon the community in terms of medical care, policing, court and corrective services. The Respondent drew the Tribunal’s attention to Australia’s National Drug Strategy 2017-2026 which recognises the direct and indirect harm caused by drugs to the community. These include mental health trauma, violence or other crimes, engagement with the criminal justice system and healthcare and law enforcement costs.
Independently of the effects of the use of drugs on individuals, the Applicant’s ‘street level’ drug dealing aided a commercial scale illegal drug operation. Organised crime activity creates significant burdens on policing and other public services and creates the environment for associated criminal activity. In Re Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[77] Deputy President Boyle adopted a passage from the judgment of McKerracher J in RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[78] (‘RQRP’) on which Colvin J commented in JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[79] In circumstances where, as here, the Applicant’s criminal activities did not cause direct harm, or had no apparent victim, as McKerracher J noted in RQRP:
… the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result. …[80]
[77] [2021] AATA 2227 at [43].
[78] [2021] FCA 266 at [48].
[79] [2021] FCA 762 at [43]–[45].
[80] [2021] FCA 266 at [48].
On the basis of the evidence before it, the Tribunal finds that the nature of the harm to individuals and the community should the Applicant engage again in similar criminal offences is serious.
In relation to the likelihood of the Applicant engaging in further criminal or other serious conduct that paragraph 8.1.2(2)(b) of the Direction requires the Tribunal to consider, the Tribunal notes that the Applicant has expressed his remorse and regret for his actions and the distress they have caused to his partner and daughter. He submits that his risk of recidivism is low as he has been abstinent from drugs for almost 18 months, and he will be subject to supervision by Corrective Services until 1 December 2022 in accordance with the Community Correction Order imposed on him on 1 June 2021.[81]
[81] see Exhibit R2, 211; Applicant’s Statement of Facts, Issues and Contentions [25](b).

The evidence before the Tribunal is that the Applicant has been drug free whilst in gaol and immigration detention, his mind has become clearer since he has stopped using drugs, and he wishes to continue to remain abstinent.. Whereas the Applicant has made good progress in recovering from his ice addiction whilst he has been incarcerated, he has not undertaken any substance abuse course or other drug rehabilitation program in gaol or immigration detention. Accordingly, the Tribunal cannot be satisfied that the Applicant will not resume drug-taking upon release when he is no longer in a structured environment and he is again subject to the daily pressures of parenting and providing for his family.
The Applicant’s contention that he will be subject to supervision by Corrective Services until December 2022 does not mean that the Applicant will not be a risk to the community if his visa were reinstated. The Tribunal must make its own assessment of the likelihood of the Applicant reoffending based on the submissions and evidence before the Tribunal.
The pre-sentence report, referred to Judge Sweeney in her sentencing remarks, assessed the Applicant as being a ‘medium risk of reoffending’. The report recommended that the Applicant undertake rehabilitation, with a focus on substance abuse and financial counselling. As noted above, the Applicant did not undertake courses or programs in gaol or in immigration detention to assist him to address his substance abuse problem, nor to acquire skills in managing his finances. He claims such courses were not available to him in gaol, and that he was unaware they are offered to detainees at VIDC. As the Applicant has not completed the rehabilitation that was recommended for him, the Tribunal cannot be satisfied that he has sufficiently addressed the factors that contributed to his criminal offending in 2019. It cannot therefore be satisfied that the risk of him reoffending if he re-enters the community is less than the ‘medium risk’ identified by the pre-sentence report.
The Applicant submits that he will ‘definitely not’ reoffend and he wants to be a good father and husband. The Tribunal accepts that the Applicant is remorseful for his actions and understands the negative impact of his offending on his family. However, his claim that his partner LLT and daughter C will be protective factors against him re-offending is unreliable as they did not prevent him from offending in 2019. He had been in a three-year relationship with LTT and C was aged two years when the Applicant began offending in mid-2019. On the basis of this evidence, the Tribunal cannot be satisfied that the Applicant’s genuine desire to be a good father and husband will prevent him from engaging in criminal offending in the future, particularly in circumstances where the family is experiencing financial hardship.
On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is at the low to medium level. However, in the context of the potential serious harm to individuals and the community should he engage in the same or similar criminal conduct in the future, the Tribunal finds that although the risk of him reoffending is not high, it is not acceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs on balance against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 – Family violence committed by the non-citizen
This Primary Consideration is not relevant in the Applicant’s circumstances as his offending does not include acts of family violence.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to make a determination whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).
In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:
(a) The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
(e) Whether there are other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) …
(h) …
The Applicant’s evidence is that there are two relevant minor children: his daughter, C, aged four years, and his stepson, E, aged five years. The interests of these children must be considered, individually and cumulatively, in determining whether there is ‘another reason’ to revoke the Mandatory Visa Cancellation Decision.
Having regard to the factors in paragraph 8.3(4)(a) of the Direction, the evidence before the Tribunal is that the Applicant has a very close and loving relationship with C, and that he was very involved in her daily life prior to him entering into custody in December 2019. He has maintained regular contact with C via phone and video calls during his incarceration in gaol and immigration detention. There is limited evidence in relation to the Applicant’s relationship with his step-son, E. He told the Tribunal that he and LLT are responsible for E’s upbringing and that his biological father has been absent from his life. On the basis of the evidence before it, the Tribunal is satisfied that the Applicant has a very close bond with his daughter and wishes to have a significant role in her life, and that he has assumed responsibility for the care and upbringing of his step-son in the absence of his father.
In relation to the factors in paragraph 8.3(4)(b) of the Direction, the evidence is that both children have been in the care of the State of New South Wales since August 2021. The Applicant’s partner and the children’s mother, LTT, is currently in custody following her arrest for drug related offences. There is limited information before the Tribunal in relation to the care proceedings in relation to the children that are currently underway in the Children’s Court. The evidence is that E’s biological father is participating in the proceedings, presumably with the intention of having E placed into his care. The Applicant also wishes to participate in the proceedings as they relate to his daughter. If the Children’s Court orders that the children be returned to their parents, there is the potential for the Applicant to play a positive role in his daughter’s life in the years until she reaches adulthood. However, whether this potential is likely to be realised cannot be assessed when the Children’s Court proceedings remain on foot and a care plan for the children is yet to be finalised.
Having regard to the factors in paragraph 8.3(4)(c) of the Direction, the evidence before the Tribunal is that the Applicant’s offences occurred while he was living with LTT and the children, however, there is no indication that they were exposed to his drug-related activities. If the Applicant were to be granted care of his daughter or both children as a consequence of the Children’s Court proceedings, and he were to resume drug-taking and criminal offending, they would be negatively impacted. This would be particularly so if the Applicant were taken into custody again, potentially leaving the children without a parent to care for them.
Having regard to the factors in paragraph 8.3(4)(d), (e) and (f), the Applicant’s ongoing physical separation from his daughter will likely have an adverse impact on her, although there is no evidence in relation to how their separation has affected her to date. As noted above, both C and E are currently under the care of the State, and proceedings are underway to determine who will be responsible for their long-term care. As the children’s mother LLT is currently in custody, it is unclear whether she will be able, or permitted to, resume responsibility for the care and upbringing of her children. As E’s biological father is participating in the care proceedings, it may be that the Court will determine that E should live with his father. The Tribunal is satisfied that the Applicant’s interests can be represented in the care proceedings either by a lawyer, or by him participating by phone or video without the need for him to be physically present. The impact on C and E of their physical separation from the Applicant if he is returned to Malaysia could be mitigated by regular phone and video calls, which is how they have stayed in contact with him during his incarceration in gaol and immigration detention.
Applying the guidance in paragraph 8.3(4) of the Direction, the Tribunal finds that this primary consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant’s daughter and step-son for the Applicant to have his visa reinstated, particularly in circumstances where there is no other parent who can take responsibility for their care.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4 of the Direction states:
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)…;
(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 …;
(d)…
(e)…
(f)…
(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.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR and Minister for Home Affairs (‘FYBR’)[82]. The majority (Charlesworth and Stewart JJ) concluded as follows:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[83] 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.[84]
·However, 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.[85] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[86]
[82] [2019] FCAFC 185.
[83] Charlesworth J at [66]; Stewart J at [91].
[84] Charlesworth J at [67]; Stewart J at [104].
[85] Charlesworth J at [76].
[86] Stewart J at [97].
The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of non-revocation of a mandatory visa cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[87] As a normative expression, this consideration indicates the likelihood that community expectation will in most cases lead to non-revocation, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.
[87] Charlesworth J at [77].
Having regard to the expectations of the Australian community as stated in paragraph 8.4 of the Direction, the Applicant has breached numerous Australian laws and has been convicted of multiple offences in Australia. As recognised by paragraph 8.4(2)(c) of the Direction, this should generally result in the cancellation of the non-citizen’s visa. Accordingly, under paragraph 8.4(1) of the Direction the Australian community would have an expectation that the Applicant’s visa should remain cancelled due to his serious offending.
The Tribunal has been informed by the principles in paragraph 5.2 of the Direction in considering the weight to give this primary consideration. Sub-paragraph 5.2(2) provides that non-citizens such as the Applicant who have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia. Sub-paragraph 5.2(4) states that Australia has a low tolerance of any criminal or other serious conduct by non-citizens who hold a limited stay visa, or who have been participating in and contributing to the Australian community only for a short period of time. The Applicant arrived in Australia in March 2015 and engaged in a course of study for about 12 months prior to the cancellation of his student visa in March 2017. Following the cancellation of his visa, the Applicant made a number of applications for a protection visa, during which time he held a series of bridging visas until the Mandatory Visa Cancellation Decision in December 2020. From at least mid-2016 until his arrest and being taken into custody in December 2019 the Applicant made little or no positive contribution to the Australian community. He was not authorised to work or study, and in May 2019 he began criminal offending leading to his arrest and being taken into custody in December 2019.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and that he has held only temporary visas during his stay in Australia, the Tribunal finds that Primary Consideration 4 on balance weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
While the primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[88]at [23]:
... Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[88] [2018] FCA 594.
The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
International non-refoulement obligations
Paragraph 9.1 of the Direction requires the decision-maker to take into consideration Australia’s international non-refoulement obligations in making a decision whether to exercise the discretion to revoke a mandatory visa cancellation decision.
The Applicant stated that he accepts that he has not invoked Australia’s protection obligations.[89] Accordingly, the Tribunal gives this other consideration neutral weight.
[89] Applicant’s Statement of Facts, Issues and Contentions [46]; Transcript, 8 November 2021, 56.
Extent of impediments if removed from Australia
The Direction states in paragraph 9.2:
(1)Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country, taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is 28 years of age and is generally in good physical health. His evidence is that he would like to attend a structured drug rehabilitation program when he is released into the community. If he were to seek out such treatment or other counselling in the future, he should be able to readily acquire it in Malaysia as a Malaysian citizen. The Applicant claims that he is concerned about the risk of COVID-19 in Malaysia. Whereas this is a risk, it is one that is faced by the whole population. The government of Malaysia is responding to the threat COVID-19 poses to the health of its citizens, and appropriate medical treatment is available them.

Guided by paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, as he lived in Malaysia until the age of 21 years and is familiar with life in his home country. It will however take time for him to readjust to life in a country in which he has not lived for a number of years.
Having regard to paragraph 9.2(1)(c), the Applicant’s evidence is that he has family members in Malaysia, including his parents and brother. These family members should be able to provide the Applicant with some support while he reintegrates back into the community and looks for employment. He has experience working as a tiler and waiter, which will have provided him with transferable skills to assist him with obtaining paid employment. The Applicant will have the same access to government services as are available to Malaysian citizens, including health care, welfare benefits and social services.
Having regard to the evidence before it, the Tribunal finds the Applicant will face some difficulties re-establishing himself in Malaysia and this will be exacerbated by the emotional distress he will suffer due to his separation from his partner, daughter and step-son who will remain in Australia. While his physical separation from his family members is likely to be difficult, the Applicant will be able to maintain contact with them by phone and video calls, which is how they have stayed in touch during his incarceration in gaol and immigration detention. The Applicant’s partner, LLT, is a Malaysian national and she and the children hold temporary visas in Australia. If she were willing and able to do so, LLT could return to Malaysia with the children so they could be reunited with the Applicant.
Guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that this other consideration weighs marginally in favour of the revocation of the Mandatory Visa Cancellation Decision.
Impact on victims
The Direction states in paragraph 9.3:
1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The impact on victims of a decision to revoke the cancellation of a visa requires the decision-maker to direct attention to the impact on the victim of the Applicant being allowed to remain in Australia. Generally, this consideration will weigh against the Applicant due to the harm caused by them to the victims of their offending.
There is no evidence before the Tribunal in relation to the victims and other individuals affected by the Applicant’s offending and no information available as to how non-revocation of the Mandatory Visa Cancellation Decision would impact them. Accordingly, the Tribunal finds that this other consideration is of neutral impact in assessing the impact on the Applicant’s victims of a decision to revoke the Mandatory Visa Cancellation Decision.
Links to the Australian community
Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social 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.
Having regard to paragraph 9.4.1(2)(a) of the Direction, the evidence before the Tribunal is that the Applicant has resided in Australia since March 2015, having arrived in Australia at the age of 21 years. He commenced criminal offending approximately four years after his arrival, and has been in criminal custody and immigration detention for the past two years. The evidence demonstrates that he has made a limited contribution to the Australian community as he was not permitted to work while he held a bridging visa.
In relation to the factors in paragraph 9.4.1(1) and 9.4.1(2)(b) of the Direction, the Applicant has strong family ties in Australia, namely his partner, daughter and step-son, who would likely to be negatively affected if his visa remains cancelled. However, the Applicant’s family members are the holders of temporary visas, and therefore are not persons referred to in paragraph 9.4.1(1) and 9.4.1(2)(b) of the Direction. Whilst their circumstances are not irrelevant, the Tribunal has given them less weight.
On the evidence before it, the Tribunal is satisfied that Applicant’s family members who are temporary visa holders would be negatively impacted if the Applicant’s visa is not reinstated, and finds that this weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
The Applicant does not claim that any Australian business interests would be affected by his removal to Malaysia, nor is there evidence of any compromise to the delivery of a major project or an important service in Australia. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, the Tribunal finds that this other consideration weighs marginally in favour of revocation. It makes this finding having regard to the impact on his family members who hold temporary visas in Australia, and the low tolerance by the community of criminal offending by individuals such as the Applicant who hold a temporary visa and have made a limited contribution to the community during their stay in Australia.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The Applicant’s criminal offending is serious due to the impact on individuals and the community of the sale and distribution of illicit drugs. Despite the low to moderate risk of him committing future criminal offences, the nature and seriousness of the harm his re-offending would cause to individuals and the community is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 weighs in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s daughter and step-son for him to remain in Australia, particularly as they are currently under the care of the State of New South Wales and their mother is in custody. Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious offending while the holder of a temporary visa should cause him to forfeit the privilege of remaining in Australia.
In regard to the relevant Other Considerations, only the impediments the Applicant will face on return to Malaysia and his strong links to his family members who reside in Australia weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and that the Reviewable Decision to refuse to revoke the Mandatory Visa Cancellation Decision must be affirmed.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the reviewable decision made by the delegate of the Respondent dated 27 August 2021 that the mandatory cancellation of the Applicant’s visa under section 501(3A) of the Migration Act 1958 (Cth) not be revoked under section 501CA(4) of the Migration Act 1958 (Cth).

I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

..................................[SGD]......................................
Associate
Dated: 16 December 2021

Date(s) of hearing: 8 November 2021

Solicitors for the Applicant: Mr L Ting, Ting Legal

Solicitors for the Joined Party: Mr J Papalia, Australian Government Solicitor

Date(s) of hearing:	8 November 2021
Solicitors for the Applicant:	Mr L Ting, Ting Legal
Solicitors for the Joined Party:	Mr J Papalia, Australian Government Solicitor