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

Murphy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3635 (12 October 2021)
Division:GENERAL DIVISION
File Number: 2021/5066
Re:Matthew Murphy
APPLICANT

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

DECISION
Tribunal:Deputy President Britten-Jones
Date:12 October 2021
Place:Melbourne

The Tribunal affirms the decision under review.
......[SGD].........................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – serious offending involving drug trafficking – whether discretion to revoke mandatory cancellation should be exercised – other considerations – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Gasper v Minister for Immigration and Border Protection (2016) 153 ALD 338; [2016] FCA 1166
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
Secondary Materials
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction no. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Deputy President Britten-Jones
12 October 2021
INTRODUCTION

The applicant (Mr Murphy) has had his visa cancelled mandatorily under s 501(3A) of the Migration Act 1958 (Cth).[1] Following that cancellation, he made representations to the Minister that the cancellation decision be revoked, but to no avail. On 27 July 2021, Mr Murphy applied to the Tribunal for review of the decision of a delegate of the Minister not to revoke the mandatory cancellation of Mr Murphy’s Special Category (subclass 444) visa (the visa).
[1] All references to legislation are to the Migration Act 1958 unless otherwise stated.
This application for review is made in accordance with s 500(1)(ba), which allows applications to be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
Mr Murphy made representations on 5 December 2018 that the cancellation decision should be revoked. His reasons for seeking revocation included:
It will destroy my family and 3 children. It would therefore effectively punish them as well as me twice for one mistake of mine.
My whole life is in Australia, I love this country. I lived here completely legitimately for over 12 years before my life got out of control.
I am not a career criminal, my offending is a one-off series of events over a very small period of my life. It only happened due to me being in a very vulnerable position and being taken advantage of and set up.
I have been crime and drug free my whole sentence, I’ve shown excellent signs of rehabilitation. I’m classed as a “low risk of reoffending” by clinicians and prison staff.
Background and Offending
Mr Murphy is 43 years old. He has spent the last 7 years incarcerated for drug related crimes. He is a citizen of both New Zealand and the United Kingdom. If he is not successful in having the visa cancellation decision revoked, he told the Tribunal that he would return to the United Kingdom because he has no family in New Zealand.
He was born in the United Kingdom in 1977. When he was 3 years old, his family moved to New Zealand where he grew up. He acquired New Zealand citizenship in 1980. The family moved back to the United Kingdom a couple of times because his father was an IT consultant whose work took him to different countries. Mr Murphy lived in the United Kingdom from 1993 to 1999 and then returned to New Zealand. He came to Australia in 2002. His parents divorced in 2001. His mother and brother now live in the United Kingdom. His father lives in Melbourne.
In New Zealand, Mr Murphy worked in the fashion industry. He came to Australia because his boss asked him to help him set up his business in Melbourne. In 2008, he fell in love with L with whom he had a child in 2009. They lived together, looked after their daughter and he worked in her family business until they broke up in May 2010. This was a traumatic experience for Mr Murphy. He maintained contact with his daughter and she stayed with him on weekends. It was an amicable breakup. He lived with his mother for a while. His mother moved back to the United Kingdom in April 2014.
After breaking up with L, Mr Murphy commenced another relationship with K. K had two children from a previous relationship. They lived together for some time in 2014 until he went to prison in November 2014. She supported him until 2019 when, for reasons unknown to him, she withdrew her support and he has not heard from her since.
In 2014, his life began a downward spiral. Before then he had tried what he described as party drugs on occasion. He had been a DJ in nightclubs in the United Kingdom and drugs were part of the music and fashion industry. However, in 2014, he became addicted to cocaine and became involved with people who trafficked cocaine. He continued to smoke marijuana at this time. In about August 2014, he was arrested for possessing a small amount of marijuana. He got involved with the wrong people and was offered a position selling cocaine for which he would receive a commission of $10,000. In October 2014, he was pulled over by the police, arrested and searched. He was in possession of ecstasy, cocaine, marijuana and a large sum of money. Two weeks later, on 12 November 2014, he was under surveillance and was arrested for drug trafficking. He was remanded in custody and was sentenced on 28 April 2016. He pleaded guilty and received a total effective sentence of 7 years imprisonment.
He also committed the offence of criminal damage to which he pleaded guilty in the Melbourne Magistrates Court on 28 May 2015. Mr Murphy had an argument with L who told him that he would not see his daughter again. Whilst walking away he kicked her car causing it damage. He agreed to voluntarily attend the police station and he was issued with a restraining order that prevented him from going near the restaurant where his partner worked. He was ordered to pay compensation and a fine, but the charge proceeded without conviction. He has not otherwise been involved in any violent offending.
LEGISLATIVE FRAMEWORK
Under s 501(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 paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); 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.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA 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, in the way that the Minister considers appropriate in the circumstances:
(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.
(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.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
ISSUES BEFORE THE TRIBUNAL
Mr Murphy does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7). Therefore, he cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[3]
[3] Gasper v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345 at [38]; [2016] FCA 1166.
The only issue for the Tribunal is whether there is another reason to revoke the cancellation decision having regard to the principles and considerations in Direction 90.[4]
[4] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
Direction 90
The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 90 as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the following are primary considerations:
(i)protection of the Australian community from criminal or other serious conduct;
(ii)whether the conduct engaged in constituted family violence;
(iii)the best interests of minor children in Australia;
(iv)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(i)international non-refoulement obligations;
(ii)extent of impediments if removed;
(iii)impact on victims;
(iv)links to the Australian community, including:
a)strength, nature and duration of ties to Australia;
b)impact on Australian business interests
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[5]
CONSIDERATION
[5] Direction 90 at 7.
Protection of the Australian community – 8.1 of Direction 90
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. I give consideration to:
(a) the nature and seriousness of the non-citizen’s conduct to date; and
(b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 90
Mr Murphy was convicted of offences involving possessing and trafficking cannabis and cocaine. These types of crimes are viewed very seriously by the Australian Government and community. The seriousness of the crimes is reflected in the 7 year custodial sentence imposed for the cocaine charges and the 4 month custodial sentence for the marijuana charges. Whilst the offending took place over a limited period of time in the second half of 2014, there were two separate and serious crimes. He was trafficking separately in both marijuana and cocaine. His trafficking in cannabis was dealt with in the Melbourne Magistrates Court. His trafficking in cocaine was dealt with in the Melbourne County Court. The cumulative effect of the trafficking makes it a very significant and serious crime spree. He said that he went from being a user to a trafficker in a short period of time and that he was not motivated by money but rather he just wished to fund his ongoing use. I accept that may have been the case for the marijuana but not for the cocaine which offered the prospect of $10,000 per kilogram sold.
The seriousness of the cocaine trafficking is reflected in the reasons of the sentencing Judge who said:
[20] … Your counsel conceded that there were indicia of planning and system involved in your trafficking but that it must be taken into account that you were charged on the basis of a limited period of offending conduct and a single wholesale transaction
…
[29] Matthew Murphy, the offending in which you engaged is serious. You are being sentenced in respect of one short period of time but your role in the enterprise is relevant to sentencing you. You became involved in the business of selling illegal drugs in large quantities. I accept that what you did was under instruction from principles in Colombia but you were clearly a trusted operative. You clearly played a very active and major part in the drug trafficking business. That is evident from the level of commission you were to be paid and the telephone intercept material. I accept that you entered into this business because of your own drug addiction. I also accept that you apparently did not make much profit out of your involvement, given that you were living in what might be described as fairly poor circumstances. It may be, as suggested by one of the references, that you were somewhat out of your depth in this situation, but you took it on in order to obtain the means to support your very large cocaine habit.
[30] The trade in illegal drugs is an evil one. It preys on the weakness of others. You clearly, over many years, had observed the extremely negative effects on individuals and their families from the use of illegal drugs. A sentence must be imposed on you which acts as a deterrent to those who decide to take this further step into trafficking drugs particularly in such large amounts. A sentence of imprisonment is clearly warranted for the purposes of denunciation, general deterrence, just punishment and specific deterrence.
…
[35] … Your role in this offending can be distinguished from the role of your co-accused in significant ways. Your role was higher up in the hierarchy than theirs, and although the charge is in respect of trafficking over a limited period of time, the amount of drugs were significant, being more than double the amount required for a large commercial quantity.
I agree with the comments of the sentencing Judge and I consider Mr Murphy’s offences to be very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.[6] I also 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 non citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[6] Direction 90 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[7] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[7] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90

If Mr Murphy were to engage in further similar criminal offending, then the nature of the harm would be extremely serious. The negative impact of drugs in society and in particular on the vulnerable is well known. This is not a crime with a single victim. The large quantity of cocaine, the subject of the trafficking charges, would have caused significant physical and mental harm to many people within the Australian community. That harm extends to the families of those who take drugs.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90
Mr Murphy swears he will never take drugs again or be involved with their trafficking. He says he was not a “career criminal” and that his offending was for a limited period in 2014. He had no prior criminal history. When in gaol he decided that he would make every effort to rehabilitate himself. Early on, when on remand in 2015, he sought counsel from Caraniche with whom he completed drug and alcohol treatment programs. He received three certificates in 2015 including for peer educator training.
Further, Mr Murphy participated in a 130-hour intensive alcohol and other drugs program which involved group therapy and one on one counselling. In 2019, he completed a 6-hour depression course which he said caused him to develop insight into his “triggers” and “coping strategies”. He has also completed some further education whilst in prison including qualifications in microbusiness and engineering from TAFE. On 31 March 2021, he received a certificate for completing an alcohol and other drugs program.
Mr Murphy has a long standing friendship with a woman who is a communications officer with Harm Reduction Victoria. She provided a positive character reference and says she will support him if he is released and assist him to find employment. Mr Murphy also has a friend who owns a property in Queensland and has offered accommodation and assistance to Mr Murphy if he wishes to stay with him on his property.
The only independent authoritative report as to character is from Mr Gary McMullen, a psychologist, dated 9 March 2016, which is referred to by the Judge who sentenced Mr Murphy on 28 April 2016. The Judge said:
[19] … Mr McMullen says that it is positive that since your incarceration you have remained drug-free and have undertaken drug programs and taken on the role of peer educator. He says these steps suggest that you have a determination to permanently abstain from drugs and notes the high levels of support you are receiving from your parents, brother and the mother of your child.
Further with respect to rehabilitation, the sentencing Judge said:
[25] I consider that you have reasonable prospects of rehabilitation. It is clear, as demonstrated by the material that was tendered in the Exhibit 5 and Exhibit 6, you have completed courses in custody and commenced counselling. You have also engaged in the peer educator training program. You have family support. It appears that you have a degree of intelligence and ability to engage in work which is also encouraging.
[26] You have a number of mental health issues which you need to address which would assist in your rehabilitation. You have been involved with illegal drugs over a long period of time and have engaged in self-destructive drug use despite seeing the negative impact that such use has had on others. Those matters and your preparedness to get involved in the trafficking of cocaine are the reasons why I am somewhat guarded as to your prospects of rehabilitation.
Mr Murphy has not taken drugs since 2014. He has returned negative drug tests for the period of his incarceration. His abstinence from drugs for such a lengthy period together with his attendance and completion of numerous rehabilitative courses are objective evidence that it is likely that he will not return to drugs or any related criminal activity. I accept as genuine his oral evidence that he has learnt his lesson and will not return to a life of drugs, but I note that this has not been tested in the community. He would have the support of his father, who also offered to assist him with employment, but support is unlikely to be provided by K because his relationship with her appears to be over. He has good work prospects. He would receive support from the four friends who gave written and oral evidence in his favour. Taking these matters into account, I find that he has taken positive steps towards rehabilitation and that he has a low risk of re-offending.
Conclusion as to protection of the Australian community – 8.1 of Direction 90
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[8] The applicant has committed serious crimes involving the trafficking of drugs. The nature of the harm of any re-offending is very serious but the likelihood of re-offending is relatively low. It remains the case that there is still some risk, albeit low, of serious harm to the community if Mr Murphy re-offends. Consequently, I conclude that the protection of the Australian community is a factor that weighs moderately against revocation of the cancellation decision.
[8] Direction 90 at 8.1(1).
Family Violence – 8.2 of Direction 90
The Government has serious concerns about conferring the privilege of remaining in Australia on non-citizens who engage in family violence. Family violence includes intentionally damaging property. Mr Murphy engaged in family violence by kicking his L’s car after arguing with her. The incident did not involve any physical contact with L and he had moved away from her before kicking the car. Nevertheless, it was conduct that had the potential of causing her fear. The incident resulted in a family violence safety notice being issued against him on 9 January 2012.
Clause 8.2 says that the Government’s concerns are proportionate to the seriousness of the family violence engaged in. This was a once-off incident and caused no physical harm. Nevertheless, it was violent conduct of a nature that is serious. I accept that Mr Murphy expressed genuine remorse. In this case, the seriousness would be considered less than other examples of family violence, but there remains a concern about My Murphy’s conduct which impacts adversely on the privilege of him remaining in Australia. This is a factor that weighs against revocation of the cancellation decision.
Best interests of minor children – 8.3 of Direction 90
I must determine whether non-revocation of the cancellation of the visa is, or is not, in the best interests of a child who is affected by the decision. The best interests of each child should be given individual consideration to the extent that their interests may differ. The following factors that I must consider and are relevant to this application include:
(a)The nature and duration of the relationship between the child and the applicant. 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;
(b)the extent to which the applicant is likely to play a positive parental role in the future;
(c)the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the applicant would have on a child, taking into account ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Mr Murphy has a daughter aged 12 years. He was together with the mother for about two and half to three years. They separated just after his daughter’s first birthday in 2010. He looked after his daughter on weekends and had some access to her on Wednesdays. This continued until he was imprisoned in 2014. His daughter visited him for a while but then they decided it was best for her to no longer visit but they continued to talk by phone regularly. Some years later when he was at Port Phillip prison, his daughter recommenced visiting him until about 2018. He and his daughter write to each other.
I consider that Mr Murphy has a strong relationship with his daughter and that it would be in her best interests if he were released so that he and L could continue to co-parent as they did before his incarceration. He would be likely to play a positive role in her life. I take into account that there has been a long period of absence or limited meaningful contact because he has been in prison since she was 5 years old and I therefore give this consideration less weight than I might otherwise. However, some meaningful contact has been maintained in that period. His daughter has a mother who fulfils a parental role, but I accept that his daughter would benefit from his presence and support in her life.
Mr Murphy commenced a relationship with K in 2011 and he was living with her and her children for about five days a week up until shortly before his imprisonment in November 2014. K has two children aged 17 years and 15 years. K has expressly withdrawn her previous letter of support because she is no longer in a relationship with Mr Murphy. However, Mr Murphy says that his relationship with her children will continue. They visited him whilst he was in prison every second weekend until K ended the relationship in early 2019.
There is some uncertainty about the role Mr Murphy would play with K’s children, but I consider that it would be in the best interests of these two children if the cancellation decision was revoked. It is clear from the evidence that Mr Murphy was involved in a genuine and lengthy relationship with K and that he formed a close relationship with her children. I give less weight to this factor because K plays a parental role with these children, because they are close to turning 18 (three years and one year away respectively) and because there has been a long period of absence or limited meaningful contact when he has been in prison. If allowed by K, I accept that Mr Murphy may play some positive role in the future with these children.
I conclude that the best interests of minor children is a factor that weighs in favour of revocation of the cancellation decision.
Expectations of the Australian community – 8.4 of Direction 90
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 remain in Australia.[9]
[9] Direction 90 at 8.4(1).
In addition, non-revocation may be appropriate simply because the nature of the character concerns is such that the Australian community would expect that the person should not be granted a visa.[10]
[10] Direction 90 at 8.4(2).
Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case.
Mr Murphy has engaged in serious conduct in breach of the Australian community’s expectation that non-citizens obey the law. I find that the character concerns arising from his criminal conduct are such that the Australian community would not expect Mr Murphy to be allowed to remain in the Australian community. Drug trafficking is viewed very seriously by the Australian community and it raises very serious character concerns. Further, Mr Murphy has engaged in family violence, although much less weight would be placed on that conduct given the nature and seriousness of it.
The drug trafficking committed by Mr Murphy is of such a serious nature that the Australian community would not expect the Government to revoke the cancellation of his visa.
My conclusion as to the expectations of the Australian community is that it is a factor that weighs significantly against revocation of the cancellation decision.
Other Considerations
In deciding whether to revoke the cancellation of the applicant’s visa, I must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[11]
[11] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
International non-refoulement obligations – 9.1 of Direction 90
I give this factor neutral consideration because there was no material evidence on the topic.
Extent of impediments if removed to home country – 9.2 of Direction 90
Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The applicant was born in the UK. In round terms he has lived half his life in Australia, a quarter in the UK and a quarter in New Zealand. If required to leave, he would return to the UK where he would have the support of his mother and his brother. He also has some friends there with whom he has kept up since he left. There are no cultural or language barriers in both the UK and New Zealand. He would have access to social, medical and economic support in those countries.
He is 43 years old and in good physical health - he gave evidence that his health has even improved since being incarcerated. He accepts that his mental health would benefit from ongoing counselling upon his release, but he has no significant mental health issues.
There would be no significant impediments for Mr Murphy in either the UK or New Zealand and I consider he would have very little difficulty in adjusting and establishing himself there. I would expect that he would find employment as he managed to do in the past, drawing upon his further education gained whilst in prison. This is a factor that weighs neither for nor against revocation of the cancellation decision.
Impact on victims – 9.3 of Direction 90
I give this factor neutral consideration because there was no material evidence on the topic.
Links to the Australian community – 9.4 of Direction 90
I must consider the impact of the visa cancellation decision on Mr Murphy’s immediate family members. In his request for revocation submitted in December 2018, Mr Murphy described his second partner, K, as his fiancée and referred to her staunch support. He said she would be devastated if he were removed from Australia. In 2019, he fell out with her and she advised the respondent in writing that she wished to withdraw her letter of support and those of her children. K’s mother and another friend also withdrew their support. He has tried to make contact with K but she has told him not to contact her. She used to visit him in gaol every weekend and bring her two children every second weekend. He is unable to explain the change in her behaviour. He assumes she has met someone else and moved on. In all of these circumstances, I do not consider that his removal will have any negative impact on her.
Further, I do not consider that his removal will have any significant negative impact upon L (the mother of his child) because they ended their relationship in about 2011 and she did not give any evidence to that effect.
The only immediate adult family member in Australia who would be impacted by his removal is his father. He wrote positive letters in December 2018 and June 2021 describing how their relationship suffered after his marriage breakdown in 2001 but that since Mr Murphy’s arrest in 2014, he has had regular contact with him in prison and resumed their relationship. He gave oral evidence attesting to Mr Murphy’s good character and how he would support him upon his release. I find that his father would be negatively impacted by his removal because he wants to continue to build the relationship between them.
Mr Murphy has significant ties to Australia because he has lived here for nearly 20 years having arrived when he was 24 years of age. He has had steady employment including the job that brought him to Australia as a national dispatch manager which he maintained up to 2007. He then started an apprenticeship and worked as an upholsterer in 2007 and 2008. He was a barman from 2008 to 2012 and a driver from 2013 to 2014. He played rugby league and has volunteered at clubs and mentored children at skateparks. He lived in Australia for twelve years before his first offence during which I find that he made a significant positive contribution to the Australian community. He used his term of imprisonment to rehabilitate himself and to further educate himself which was a positive use of his time.
He has made friends in Australia who would miss him if he were removed. Four of those friends gave both written and oral evidence in support of him. I take into account the strong ties that he has with these friends and the other links he created through his employment, sporting and leisure activities.
No evidence or argument was advanced with respect to any impact on Australian business interests.
Mr Murphy’s links to the Australian community weigh in favour of revocation of the cancellation decision.
Conclusion as to whether to exercise the discretion to revoke the cancellation of the visa
I have considered the specific circumstances relating to Mr Murphy as part of my consideration. I am now required to determine whether to exercise my discretion to revoke the cancellation decision.
In terms of weighing up the considerations both for and against revocation, I am minded to place more weight on the primary considerations relating to family violence and the protection and expectations of the Australian community than on the other countervailing considerations. Paragraph 7(2) of Direction 90 says that primary considerations should generally be given greater weight than other considerations and I see no reason to depart from that in this case.
I place significant weight on the protection and expectations of the Australian community because of the seriousness of the drug trafficking which has such a broad and negative impact on the community. The cocaine trafficking involved some degree of planning and it was for a large commercial quantity of illegal drugs. Mr Murphy was described by the sentencing Judge as “a trusted operative … [who] played a very active and major part in the drug trafficking business”. The cannabis trafficking was serious enough to warrant a custodial sentence. Only marginal weight is added by the incident of Mr Murphy kicking his ex-partner’s car door.
The interests of his daughter, together with (but less so) the interests of K’s children, are a significant factor in favour of revocation of the cancellation decision. However, I consider that the protection and expectations of the Australian community outweighs the best interests of the children. Mr Murphy chose to live a life involving taking drugs and then he trafficked drugs whilst he was a parent of a very young child. He missed out on seeing her grow up from a 5 year old to a 12 year old because of his conduct. He will no doubt continue to miss his daughter and she will miss him, but that is a consequence of his own criminal behaviour.

My Murphy has family and friends in the United Kingdom and would face minimal impediments if returned there. He has broken up with his two ex-partners and has no current relationship with anyone in Australia. His father will be disappointed, but he has had a limited relationship with him since well before his imprisonment. I take into account that Mr Murphy spent a significant period of time in Australia making a positive contribution and not offending. However, he undid that good behaviour by being a regular user of cocaine and cannabis and then graduating to trafficking in both substances. I also take into account his good behaviour and process of rehabilitation whilst in prison.
By cancelling Mr Murphy’s visa, the Government is exercising its commitment to protecting the Australian community from harm. The primary considerations relating to family violence and the protection and expectations of the Australian community outweigh any claims with respect to the best interests of children and the other considerations.
I reach this conclusion by applying the principles in paragraph 5.2 of Direction 90 to the specific circumstances of Mr Murphy who has committed serious crimes involving drug trafficking and domestic violence:
(a)Being able to remain in Australia is a privilege Australia conferred on Mr Murphy in the expectation that he would be 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 – by drug trafficking. Mr Murphy has not been law-abiding; he has shown disregard for Australia’s law enforcement network and he has caused harm to the wider community.
(b)Mr Murphy, as a non-citizen who has committed serious crimes of drug trafficking, together with less serious conduct involving violence against a woman’s property, should generally expect to forfeit the privilege of staying in Australia.
(c)The Australian community expects that the Australian Government should cancel the visas of non-citizens who commit such crimes in Australia which raise serious character concerns.
It follows from the application of these principles that I am not satisfied that there is another reason why the cancellation decision should be revoked.
CONCLUSION
I consider that there is no other reason to revoke the cancellation decision. The decision of the Tribunal is to affirm the decision under review.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

...[SGD].......................................................
Associate
Dated 12 October 2021

Dates of hearing: 4 and 5 October 2021

Representative for the Applicant: Self-represented

Solicitor for the Respondent: A Cunynghame

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:

[2021] AATA 3635

12 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Dates of hearing:	4 and 5 October 2021
Representative for the Applicant:	Self-represented
Solicitor for the Respondent:	A Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers
Dates of hearing: