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

[2021] AATA 2227

Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2227 (9 July 2021)

Division:GENERAL DIVISION

File Number:          2021/2522

Re:Duc Minh Nguyen

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date:9 July 2021  

Place:Perth

The decision of the delegate of the Minister dated 14 April 2021 not to revoke the cancellation of the Applicant's Class TU Subclass 500 Student (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

...[SGD].....................................................................

Deputy President Boyle

CATCHWORDS

MIGRATION – decision of a delegate of the Minister not to revoke mandatory cancellation of a temporary student visa – Applicant fails the character test – whether there is “another reason” to revoke the mandatory cancellation – Direction 90 applied – Applicant made no written submissions before the Tribunal – Applicant only disclosed relevant minor children at the hearing – prohibition under ss 500(6H) and 500(6J) of the Migration Act – Applicant’s temporary student visa will expire in approximately 8 months – reviewable decision affirmed

LEGISLATION

Migration Act 1958 (Cth) – ss 494D, 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6F), 500(6H), 500(6J), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(3)(b), 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)

Migration Regulations 1994 (Cth) sch 2 cls 500.214(2), 500.214(3)

Misuse of Drugs Act 1981 (WA) – ss 7(1)(a)

CASES

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

CZCV and Minister for Home Affairs [2019] AATA 91

Dinh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1487

FYBR v Minister for Home Affairs [2019] FCAFC 18

Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 66

JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762

Minister for Home Affairs v HSKJ (2018) 266 FCR 59

Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171

NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143

Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953

Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5165

RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266

Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545

Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208

SECONDARY MATERIALS

Australian Government Department of Health, National Drug Strategy 2017–2026 (18 September 2017)

Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA

Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paras 6.3, 6.3(5), 14.4

Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA – paras 4(1), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 8, 8.1, 8.1.1, 8.1.1(1), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.3(4), 8.4, 8.4(1), 9, 9(1)(c), 9.1, 9.2, 9.3, 9.3(1), 9.4, 9.4.1, 9.4.2

REASONS FOR DECISION

Deputy President Boyle

9 July 2021

THE APPLICATION

1. The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 14 April 2021 not to revoke the cancellation of the Applicant's Class TU Subclass 500 Student (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

2. The Applicant’s visa was cancelled under s 501(3A) of the Act on the basis that he did not pass the character test by reason of his substantial criminal record and he was serving a full-time term of imprisonment for an offence against a law of a State.

   THE ISSUE

3. The issue for determination is whether the Tribunal should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A). That will require determination of:

   (a)whether the Applicant passes the character test (as defined by s 501 of the Act); and

   (b)if he does not pass the character test, whether there is a “another reason” why the mandatory cancellation decision should be revoked (s 501CA(4)(b)(ii)).

   BACKGROUND

4. The following facts are taken primarily from the Minister’s Statement of Facts, Issues and Contentions dated 26 May 2021 (Minister’s SFIC) and are not contentious.

5. The Applicant is a citizen of Vietnam who arrived in Australia on 23 December 2015 at the age of 19. He was initially granted a Class TU Subclass 573 Higher Education Sector (Temporary) visa, then a Class WA Subclass 010 Bridging A (Temporary) visa and finally the visa referred to in [1] above.

6. On 9 February 2021 the Applicant was convicted, on pleas of guilty, in the District Court of Western Australia of two counts of cultivating a prohibited drug (cannabis) with intent to sell or supply, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA). The Applicant was sentenced to terms of imprisonment of 12 months on one count and four months on the other, to be served cumulatively from 7 November 2019.[1]

   [1] R1/31–2.

7. On 19 February 2021 the Applicant’s visa was cancelled pursuant to s 501(3A) of the Act.[2]

   [2] R1/117–121.

8. On 19 March 2021 the Applicant requested revocation of the decision to cancel his visa and made representations in support of that request.[3] The Applicant provided various supporting documents to the Department of Home Affairs, including a submission from his then lawyers, Hayden Lawyers & Associates,[4] various statutory declarations[5] and copies of his education and vocational qualifications.[6] In his representations to the Department, the Applicant accepted that he did not pass the character test but submitted that there were other reasons why the decision to cancel his visa should be revoked.[7]

   [3] R1/44–7.

   [4] R1/69–73.

   [5] R1/63–8; R1/77–107.

   [6] R1/108–115.

   [7] R1/69.

9. On 14 April 2021 a delegate of the Minister decided under s 501CA(4)(b)(ii) of the Act that there was not another reason why the mandatory cancellation decision should be revoked and therefore did not revoke the cancellation of the visa.[8]

   [8] R1/18; R1/20–30.

10. On the material before the Tribunal, it appears that notice of the delegate’s decision to not revoke the cancellation of the Applicant’s visa was provided to Hayden Lawyers & Associates by email transmission on 19 April 2021.[9] While there were no submissions made by either party on the legal efficacy of the apparent service of the notice of the decision on Hayden Lawyers & Associates, the Tribunal notes that there was a Form 956 included in the G documents.[10] The copy of that form was largely unreadable, however, the Tribunal assumes that that document nominated Hayden Lawyers & Associates as the “authorised recipient” under s 494D of the Act. The Tribunal repeats its observations at [11]–[18] of its decision in Dinh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[11] (Dinh). For the same reasons set out in those paragraphs, the Tribunal finds that the notification of the decision not to revoke the cancellation was served on the Applicant for the purposes of s 501G(1) of the Act on or about 19 April 2021.

    [9] R1/164.

    [10] R1/74–6.

    [11] [2021] AATA 1487.

11. The application for review was lodged with the Administrative Appeals Tribunal on 22 April 2021,[12] that is three days after the notice of the decision was served, and was, therefore, lodged within the nine-day period prescribed by s 500(6B) of the Act. The decision comes within s 500(1)(ba) of the Act. The Tribunal is satisfied that it has jurisdiction to review the decision.

    [12] R1/1–7.

    THE HEARING AND THE EVIDENCE

12. The application was heard on 28 June 2021. The Applicant appeared on his own behalf and the Minister was represented by Mr J Papalia of the Australian Government Solicitor. The only witness to give evidence at the hearing was the Applicant.

13. The only documents put into evidence were the G documents (R1) filed by the Minister pursuant to s 500(6F) of the Act. The Minister’s SFIC was filed on 26 May 2021. The Applicant did not file any written submissions.

    LEGISLATIVE FRAMEWORK

14. Section 501(3A) of the Act provides that:

    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.

15. A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:

    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;

    …

16. Section 501CA of the Act provides:

    (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.

    …

    (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.

    (Original emphasis.)

    Ministerial Direction 90

17. Section 499(1) of the Act provides that:

    (1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

    (a)the performance of those functions; or

    (b)the exercise of those powers.

18. Section 499(2A) of the Act provides that:

    [a] person or body must comply with a direction under subsection (1).

19. On 8 March 2021 the Minister, being the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90). The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).

20. Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:

    Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full­time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

21. Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA. These principles are 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 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.

22. Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are applicable) in order to determine whether the mandatory cancellation of the visa should be revoked.

23. Paragraph 8 of Direction 90 sets out the primary considerations to be taken into account in making a decision under s 501CA(4) of the Act. They are:

    (1)  protection of the Australian community;

    (2)  whether the conduct engaged in constituted family violence;

    (3)  the best interests of minor children in Australia;

    (4)  expectations of the Australian community.

24. Paragraph 9 of Direction 90 sets out “other considerations” that the decision-maker must take into account and relevantly provides that:

    (1)  In making a decision under section ... 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims;

    (d)links to the Australian community, including:

    (i)strength, nature and duration of ties to Australia;

    (ii)impact on Australian business interests.

25. Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:

    (1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (2)Primary considerations should generally be given greater weight than the other considerations.

    (3)One or more primary considerations may outweigh other primary considerations.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

26. Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[13] The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) (see [15] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. That is so in the Applicant’s case.

    [13] [2009] AATA 47; (2009) 106 ALD 66.

27. The Applicant does not pass the character test. The Applicant, therefore, cannot rely on s 501CA(4)(b)(i) for the original decision to cancel his visa to be revoked. The issue is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the original decision under s 501(3A) should be revoked (see [16] above).

    IS THERE ANOTHER REASON WHY THE ORIGINAL DECSION SHOULD BE REVOKED?

    PRIMARY CONSIDERATIONS

    First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)

28. Paragraph 8.1 of Direction 90 provides that when decision-makers are considering the protection of the Australian community, they:

    (1)... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in 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.

    (2)Decision-makers should also give consideration to:

    (a)  the nature and seriousness of the non-citizen’s conduct to date; and

    (b)  the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    Nature and seriousness of the conduct (para 8.1.1)

29. Paragraph 8.1.1 of Direction 90 provides:

    (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:

    (a)  without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)violent and/or sexual crimes;

    (ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)  without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));

    (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    (c)   with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d)  the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)  the cumulative effect of repeated offending;

    (f)    whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    (g)  whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

1. The Applicant’s only convictions are those referred to in [6] above. The circumstances of those offences are set out in the sentencing remarks of Barone DCJ as follows:

   The facts have been read by the prosecutor. The State has also tendered the prosecution brief, and I have read those materials. Ms Rogers has accepted the facts, and it seems that both the State and you agree about some essential elements of what you did and for how long.

   The facts that I find for the purposes of sentencing are these. Regarding count 1, on 15 July 2017, firefighters went to a house at [address redacted] Orelia…

   …

   … An illegal bypass of power was installed at the house which is what caused the fire. No one was home at the time, but cannabis plants growing were found.

   Police were contacted and they searched the house the next day. The search showed that the house had been converted for growing hydroponic cannabis. And what’s been described and accepted to be a large sophisticated hydroponic set-up was in the house as well as 150 cannabis plants.

   The forensic examination of the house showed your fingerprints on doors, cupboards and a bowl. Now, I’ve been told both through the pre-sentence report and from Ms Rogers, and I accept, that you became involved in the growing of this cannabis through someone that you had met when you worked at a restaurant.

   You were paid $500 a week and food and given a place to live in return for watering and looking after the cannabis plants. The fact that your fingerprints were found in several locations, including on a bowl, is consistent with you living there and what you’ve said about what your role was.

   Based on what I’ve been told by the lawyers and what you said in your pre-sentence report, I accept the following things. You were not involved in setting up the cannabis growing operation. The cannabis didn’t belong to you. Although you were going to get a financial benefit for being involved, you were not going to profit from the sale of the cannabis.

   Therefore, you were low in the overall hierarchy of the scheme. And I accept that in offences of this type it’s not uncommon for comparatively vulnerable people to be recruited to tend crops and live in houses to make them blend in to the community. When I say “comparatively vulnerable”, I mean compared to the people who were higher in the hierarchy. Although you were low in the hierarchy you were, of course, trusted by the scheme.

   And I also accept you became involved due to financial pressures, which means paying to live, supporting yourself, but also to pay off debts you had as a result of educating yourself.

   I’m also told and I accept that you were involved in the cultivation of the cannabis in this house for a period of four weeks.

   In relation to count 2 on the indictment, at about 11 am on 1 August 2017, police conducted a search warrant at [address redacted] Morley. Police inside found again a sophisticated hydroponic set-up for cultivating cannabis.

   I accept and I adopt the description of the sophistication of the set-up as set out in the facts. I’m not going to repeat it, but I accept the things such as the chemical distribution, the lighting, the air filtration all indicates a degree of it being a sophisticated set-up. A total of 97 cannabis plants were found. The plants were in various stages of growth which indicates that the house has been ongoing for a period of time.

   But I accept what the State and Ms Rogers have indicated to me is the agreed position, which is that you were involved in the cultivation of cannabis at that address for only, in effect, one short occasion. So as I understand and I accept, you were not living at that house, nor were you involved in the day to day upkeep and cultivation of those cannabis plants. The State accepts that they do not know when that one day occurred.

   …

   … And I accept what Ms Rogers says is that, after the fire in the first house, that scared you off being involved any further. And that when I consider all of your conduct together, over both counts, it all occurred over a period of approximately four weeks.

   …

   Again, I accept you were not involved in the setting up of this second house. I accept you only attended once, to assist the male to cultivate the cannabis. And I accept that one might describe the involvement – of your involvement at this second house as being incidental to agreement to be involved in the Orelia house.

   Again, there’s no indication you received a direct financial benefit for this one day of cultivation at the second house. It was obviously part of your overall employment, as being involved in the growing of cannabis generally over that four-week period.[14]

   [14] R1/35–37.

2. In relation to the seriousness of the crimes of which the Applicant was convicted, Barone DCJ in sentencing the Applicant observed:

   Now, the cultivating of cannabis is not a victimless crime. By participating in the production of cannabis, you helped drugs become available in the community. It is encouraging and positive that you said to the pre-sentence report author that you understand now about the wider impact of drugs in the community, and that you know what you did was totally wrong and that you regret your actions.

   Offences of this type are serious. That’s reflected in part by the maximum penalties that apply, which for this type of charge is 10 years’ imprisonment, and a fine not exceeding $20,000, or both.

   The seriousness of your offending is also to be determined by taking into account the overall circumstances of what you did, and by considering any aggravating and mitigating factors. Here, the seriousness of what you did is reflected in the fact that it was not a one-off mistake you made. Your offending covered two houses and extended for a matter of four weeks. You had the chance to think about what you were doing was wrong and it could not be described as just a one-off error in judgment.[15]

   [15] R1/37–8.

3. The Minister submitted that the sentences imposed by the Court, terms of imprisonment totalling 16 months, indicate the seriousness with which her Honour viewed the Applicant’s offending, as imprisonment is “a penalty of last resort”.[16] While that may be the case as a sentencing principle, in the context of a review of a decision not to revoke the mandatory cancellation of a visa under s 501(3A) of the Act based on a “substantial criminal record”, the decision-maker is invariably going to be considering offending which has resulted in at least 12 months’ imprisonment as it is the sentence of imprisonment which results in the “substantial criminal record”. Accordingly, in the context of a review such as the present one, the fact that the Applicant has been sentenced to a term or terms of imprisonment is not, of itself, of particular significance in weighing this consideration. The length of the sentence or sentences imposed is obviously a relevant consideration by operation of para 8.1.1(1)(c) of Direction 90.

   [16] Minister’s SFIC para 21.

4. The Minister contends that although the Applicant’s criminal history is relatively short, it is serious and weighs against revoking the cancellation of his visa.[17]

   [17] Minister’s SFIC para 24.

5. As noted above, the Applicant did not file any submissions in these proceedings. In his statutory declaration made on 17 March 2020, the Applicant stated:

   Through self-education and 16 months in captivity, I understand that the impact of drugs on society is massive. Drugs can leave its users in illusions, they can change people’s behaviour and deteriorate severely their mental health. Drug addicts are also be original of family violence, car crashes, convictions of assaulting, and increased rate of offences and recidivism in the community.[18]

   (Without alteration.)   

   [18] R1/63–8.

6. The factors identified in para 8.1.1(1) which are relevant in the present case are those referred to in sub-paras (c), (d) and (e). As noted above, the offences and the circumstances of the Applicant’s offending were considered serious enough for Barone DCJ to have imposed terms of imprisonment. The terms actually imposed were, for the reasons set out in her sentencing comments and taking into account sentencing discounts, at the lower end of the scale. Because there were only two offences committed over a four-week period (see Barone DCJ’s sentencing remarks at [31] above), there is no cumulative effect nor a trend of increasing seriousness. Given the nature of the offences, however, the Applicant’s criminal record must still be considered to be serious. As Barone DCJ noted, “[o]ffences of this type are serious” (see [31] above).

   The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)

7. Paragraph 8.1.2 of Direction 90 relevantly provides:

   (1)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 harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

   (2)In assessing the risk that may be posed by the non-citizen 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 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).

8. The tribunal in CZCV and Minister for Home Affairs[19] (CZCV) summarised the task for the tribunal as follows at [56]:

   In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):

   An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.

   [19] [2019] AATA 91.

9. In BSJ16 v Minister for Immigration and Border Protection,[20] Moshinsky J stated, at [68]:

   ... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.

   [20] [2016] FCA 1181.

10. While the tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the several Ministerial Directions, the same considerations and principles apply to the present case. The Tribunal follows the approach indicated in the above cases.

    Nature of harm to individuals or the Australian community (para 8.1.2(2)(a))

11. The nature of the harm to individuals and to the community if the Applicant were to engage in the criminal behaviour which he has in the past, is self-evident and serious. Some of the possible consequences to the community, and individuals within the community, were identified by Barone DCJ at [31] above.

12. The Tribunal also has regard to Australia's National Drug Strategy 2017–2026[21] which noted that the Australian community faces both direct and indirect harm from drugs. These include mental health trauma, violence or other crimes, engagement with the criminal justice system more broadly and healthcare and law enforcement costs. The National Drug Strategy notes that cannabis use can result in various health impacts, including mental illness, respiratory illness and cognitive defects: Dinh at [49].

    [21] Australian Government Department of Health, National Drug Strategy 2017–2026 (18 September 2017).

13. Independently of the effects of the use of drugs, including cannabis, on individuals, the offences committed by the Applicant aided a commercial scale illegal drug operation. Organised crime prospering in the community is clearly a drain on policing and other public services and creates the environment for associated criminal activity.

14. The Tribunal notes the comments of McKerracher J at [48] in RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[22] and Colvin J’s comments on that passage at [43]–[45] in JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[23] The Tribunal adopts their Honours’ learned observations. In the present case while it might be that the Applicant’s criminal activities did not cause direct harm, or had no apparent victim, as McKerracher J noted at [48]:

    … 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. …

    The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (para 8.1.2(2)(b))

    [22] [2021] FCA 266.

    [23] [2021] FCA 782.

15. The Applicant’s request for revocation[24] asserted that his prospects of reoffending were extremely low because he:

    (a)does not have a history of bad behaviour or criminal convictions;

    (a)has shown remorse and regret for his actions; and

    (b)is young and has a positive network of family and friends and employment.

    [24] R1/46.

16. The Applicant also contended that he has shown his “turnaround desire” through education and legal employment and that he has a clear study plan proved by his desire to become an accountant and the excellent results in his first year of his Bachelor of Business in Accounting. He says that he is now “surrounded and loved by good people; [his] family, [his] employer and [his] partner” and therefore has no thoughts of wanting to do “the bad things”.[25]

    [25] R1/5.

17. The Applicant also says that he will now be financially supported by his family, with his cousin helping to pay college fees and that he will be able to get a part-time job while he studies. He says that, if he had any thoughts of furthering his crime, he would not have escaped the drug-related people, studied and worked industriously as he did until he was arrested.[26]

    [26] R1/5.

18. The Minister submits that:

    … the Tribunal should not place any significant weight on these protective factors identified by the [A]pplicant. While the Minister accepts that the [A]pplicant has shown remorse, indicated an understanding of the negative impact of his offending on the community and there is not a high risk that he will reoffend, many of the protective factors that the [A]pplicant now relies on were in existence prior to his offending. For example, the [A]pplicant previously had the financial support of his father in relation to his course fees, and attributes the withdrawal of that support to his decision to offend. There is a risk that the [A]pplicant would re-offend if he again found himself in financial difficulty. The [A]pplicant’s study ambitions were also present at the time of his offending, and there are no suggestions that his family was not supportive at the time of his offending.[27]

    [27] Minister’s SFIC para 28.

19. The Tribunal agrees with the Minister’s contention. The Applicant chose to become involved in a commercial criminal operation for financial gain. The Tribunal places little weight on the Applicant’s claim that he went into the commercial criminal operation because he was under financial pressure. He claimed that that financial pressure was, in part, caused by him being unable to get employment. That claim is, at least partially, belied by the Applicant’s claim that he was gainfully employed up to the time of his arrest. His evidence at the hearing was that after the fire in the Orelia grow house in July 2017, he got a job and continued with his studies.[28] The Applicant provided no adequate explanation of why he could not get employment prior to him committing offences but had no problem getting employment after the fire at the Orelia property.

    [28] transcript at 24.

20. The Applicant’s evidence at the hearing was that he had decided to quit his involvement in the criminal enterprise prior to the police raid on the Morley property in August 2017 and that is why, when the police raided the Morley property, he was not there.[29] The Applicant’s evidence at the hearing was confused and unconvincing. He repeatedly said in evidence that he had stopped watering the cannabis plants at the end of July 2017. When it was pointed out to him that the fire at the Orelia grow house was in the middle of July 2017, he changed his evidence to claim that he had stopped his involvement in the operations at the end of June 2017.[30] His evidence was:

    TRIBUNAL:                You’ve changed your story. You keep on saying - you said   about four times it was the end of July, you’re now saying it   was the end of June?  

    APPLICANT:              No, I - I say from June to July, it means from the beginning of   June - it means beginning of June to the end - to the - at the   end of June, it means the beginning of July. It means it   happened - I stopped before the fire. I stopped before the fire   and - and you thought that I am the only one in the property   but that was wrong. There’s other people as well, so I wouldn’t   even know what they were doing - doing in the house at that   time. I just stay a little and run away. I stopped.[31]

    [29] transcript at 24.

    [30] transcript at 26.

    [31] transcript at 26.

21. The Tribunal does not accept the Applicant’s evidence and finds, as Barone DCJ found, that the Applicant’s involvement in the criminal enterprise only ceased because of the fire in the Orelia property in the middle of July 2017 (see [30] above).

22. Even if it were the case that the Applicant became involved in criminal activity because he was under financial pressure, that is not an excuse for becoming involved in crime. The Tribunal also notes that apart from the apparent offer from a family member to pay his education fees, the Applicant’s current financial situation is not materially different to the position that he was in when he made the “commercial” decision to become involved in crime for financial gain. The Tribunal is not satisfied that if the Applicant were to find himself in a similar financial position at some point in the future, he would not again choose to commit crime for financial reward.

23. While the Applicant says that he is remorseful for his past criminal activities, the Tribunal has some difficulty accepting the genuineness of that claim. The Applicant fully appreciated the serious criminal nature of the activity in which he chose to become involved. As Barone DCJ noted, it was only “… the fire in the first house, that scared you off being involved any further” in the criminal activity (see [30] above).[32] The Applicant’s remorse, in the Tribunal’s view, is driven by his now facing the consequences of getting caught rather than any remorse for making the commercial decision to become involved in criminal activity.

    [32] transcript at 37.

1. In considering the Applicant’s rehabilitation, the Applicant does not assert that his offending was caused by some underlying condition or circumstance such as alcohol abuse or drug addiction. The Applicant’s involvement in a commercial cannabis growing operation was driven by a financial decision, not by some extraneous circumstance, condition or vulnerability. Accordingly, there is no evidence of any formal rehabilitation undertaken by the Applicant to address the root cause of his offending. All that the Tribunal really has before it is the Applicant’s assertion that he will not reoffend. As the Minister noted, and the Tribunal agrees, the circumstances in which the Applicant would find himself if he were to be released back into the community, including the level of support that he would have, are not materially different to those that applied when he committed the offences.

2. Insofar as the Applicant points to his being a low risk of reoffending because of the support that he will receive, including the likelihood of his being gainfully employed, it should not be overlooked that if the cancellation of the Applicant’s visa were to be revoked, the visa would, in any event, expire in March 2022. The Tribunal also notes that even before that expiration, the visa may be subject to cancellation under other legislative provisions of the Act, for example, for failure to comply with visa conditions. Class TU Subclass 500 Student (Temporary) visas are subject to the holder having access to sufficient funds to meet their education costs,[33] as well as other conditions. It is not clear whether the Applicant would continue to meet the conditions of the visa. Any stabilising influence that the Applicant may have as a result of employment and the Applicant having incentive to establish himself for life in Australia is significantly diminished by the fact that the Applicant’s visa will, in any event, expire within eight to nine months.  

   [33] Migration Regulations 1994 (Cth) sch 2 cls 500.214(2) and 500.214(3)

3. The Tribunal assesses the Applicant’s likelihood of reoffending as low to moderate. The harm that would be caused if the Applicant were to repeat the offending in which he has engaged in the past is serious. The Tribunal finds that the first primary consideration weighs against revocation of the cancellation of the Applicant’s visa. Moderate weight should be given to this consideration.

   Second primary consideration: Family violence committed by the non-citizen (para 8.2)

4. The Minister accepts that the crimes for which the Applicant has been convicted do not involve family violence, as that term is defined in para 4(1) of Direction 90, and that there is no evidence that the Applicant has been involved in family violence. The Minister says that this consideration is not relevant.[34] The Tribunal agrees.

   [34] Minister’s SFIC para 30.

   Third primary consideration: The best interests of minor children in Australia (para 8.3)

5. Paragraph 8.3 of Direction 90 provides:

   (1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

   (2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to ... not revoke the mandatory cancellation of the visa, is expected to be made.

   (3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

   (4)In considering the best interests of the child, the following factors must be considered where relevant:

   a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

   b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

   c)    the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

   d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

   e)    whether there are other persons who already fulfil a parental role in relation to the child;

   f)     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

   h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

6. The Applicant has no minor children. The Applicant’s request to revoke the cancellation of the visa and the representations made in support thereof following the invitation to make such representations under s 501CA(3)(b) of the Act, did not identify any relevant children.[35] In particular Table B on page 8 of the request document, which asks the person requesting revocation of the cancellation of the visa to “List below all other minor children in your life (including grandchildren, nieces/nephews, foster children, etc)”, was left blank.[36] Other sections of that form in which it might have been relevant to raise connections with minor children in Australia, for instance those dealing with the strength nature and duration of ties to Australia[37] or contributions to the Australian community,[38] made no reference to children. Similarly, the Applicant’s statement dated 17 March 2020[39] makes no reference to his having a connection with any minor child in Australia, and the submission prepared by the Applicant’s former lawyers[40] did not refer to any relevant minor child and made no submission on this primary consideration.

   [35] R1/44–116.

   [36] R1/55; emphasis omitted.

   [37] R1/59.

   [38] R1/60.

   [39] R1/63–8.

   [40] R1/69–73.

7. The only reference in any of the material provided by the Applicant is a statement in a statutory declaration of the Applicant’s “brother-in-law” (actually the husband of the Applicant’s cousin) who says that the Applicant “… helped my wife drop off and pick up my son to the football club twice a week and once a week for my daughter in drawing class”.[41]

   [41] R1/101.

8. Notwithstanding that the Applicant had not made any submission on this primary consideration, the Minister’s counsel did explore this issue with the Applicant at the hearing. The Applicant confirmed that one of his female cousins had two minor children, a three-year-old and a six-year-old.[42] That cousin, who had provided a statutory declaration,[43] was present at the hearing, however, did not give evidence. While her statutory declaration refers to her having two children, she does not refer to the Applicant having any relationship or involvement with those children. The Applicant’s evidence at the hearing was that since being incarcerated he has had no contact with these children because he did not want them to know that he was in custody.[44] The Applicant advised that his cousin and her husband provided for and looked after their two children notwithstanding that they were divorced.[45]

   [42] transcript at 18.

   [43] R1/95–7.

   [44] transcript at 19.

   [45] transcript at 29.

9. The Applicant was asked whether there were any other minor children in Australia that would be relevant to this consideration. The Applicant answered that there were not.[46] Notwithstanding that answer, later in his evidence the Applicant referred to another of his cousins having three children.[47] He identified them as being 12, nine and two years old. After further enquiry by the Tribunal it was established that these are the children of the person who describes himself as the Applicant’s brother-in-law (see [59] above).The Applicant’s evidence at the hearing was that he lived near this cousin, saw these children occasionally, that he had collected them from school and had taken the boy to soccer games. His evidence was that the father of the children is required to pay child support.[48] The Applicant’s cousin, the mother of the three children, did not provide a statement.

   [46] transcript at 20.

   [47] transcript at 32.

   [48] transcript at 34.

10. The Applicant’s evidence in relation to these children was confused and confusing. As noted above, up until the hearing the Applicant had failed to raise any claim that the best interests of any children would be served by the cancellation of his visa being revoked. He had not identified any child as being relevant to this consideration in the submissions made to the delegate (noting that the Applicant was legally represented in making those submissions) or in any of his statements.

11. Looking at the considerations identified in para 8.3(4) of Direction 90:

    (a)the Applicant’s role is non-parental and the nature and duration of the relationship has been limited;

    (b)it is hard to see how the Applicant, whose visa will expire in March 2022 in any event, would be a meaningful positive role model;

    (c)there is no evidence of the impact that separation would have on the children; and

    (d)others already fulfil the parenting roles for the children.

12. There is insufficient evidence presented by the Applicant to substantiate his having any meaningful relationship with the children of his cousins or that their best interests would be served by the cancellation of the Applicant’s visa being revoked. Even if the Tribunal were able to have regard to the matters raised for the first time by the Applicant at the hearing (noting the prohibitions under ss 500(6H) and 500(6J) of the Act) the Tribunal is not satisfied that the best interests of these children would be served by the cancellation of the Applicant’s visa being revoked. A not insignificant factor in so finding is that the visa that was cancelled was a temporary student visa which was due to expire in March 2022 in any event. In the circumstances, it is difficult to see how the revocation of the cancellation of the Applicant’s visa, in effect reinstating the cancelled visa, which will expire in March 2022 could be, in any real sense, to the benefit of these minor children.

13. This consideration does not weigh in favour of revocation of the cancellation of the visa.

    Fourth primary consideration: Expectations of the Australian community (para 8(4))

14. Paragraph 8.4 of Direction 90 relevantly provides:

    (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 ... 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 would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)  acts of family violence; or

    (b)  causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c)   commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d)  commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e)  involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)    worker exploitation.

    (3)  The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

    (4)  This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

15. The Tribunal also refers to the principles set out in para 5.2 of Direction 90 as set out in [21] above.

16. As noted at [19] above, Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[49] (NTTH) (at [194]) noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in “Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA” (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs[50] (FYBR).

    [49] [2021] AATA 1143.

    [50] [2019] FCAFC 18.

17. Senior Member Morris at [195] and [196] of NTTH summarised the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:

    195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.

    196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR...

18. As it did in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[51] and Dinh at [96], this Tribunal respectfully agrees with Senior Member Morris.

    [51] [2021] AATA 1208.

19. In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[52] this Tribunal summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows:

    [52] [2020] AATA 3953.

    156.… The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].

    157.Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.

    158.Justice Stewart in FYBR (FC) found:

    89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.

    90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.

    91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.

    159.Justice Charlesworth also observed:

    75.Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

    ...

    79....The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.

    160.Member Burford put it in Rehman as follows:

    173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.

    Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.

    174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other consideration[s].

    (Footnotes omitted.)

1. The Tribunal adopts the above. Due to the application of the “norm”, as it is now referred to in para 8.4(1) of Direction 90, and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the Applicant’s visa. Informed by the principles in para 5.2 of Direction 90, in particular sub-paras (3) and (4) (see [21] above), noting that the visa cancelled is a limited stay visa and that the Applicant has contributed to the community, if at all, for a short period only, the Tribunal assesses that significant weight should be given to this consideration.

   OTHER CONSIDERATIONS

2. Paragraph 9 of Direction 90 sets out the “Other considerations” to be taken into account relevantly as follows:

   (1)In making a decision under section ... 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

   (a)  international non-refoulement obligations;

   (b)  extent of impediments if removed;

   (c)   impact on victims;

   (d)  links to the Australian community, including:

   (i)strength, nature and duration of ties to Australia;

   (ii)impact on Australian business interests.

   International non-refoulement obligations (para 9.1)

3. Neither party made any submission on this consideration and the Tribunal is satisfied that there are no non-refoulement obligations owed by Australia to the Applicant. This is not a relevant consideration in this matter.

   Extent of impediments if removed (para 9.2)

4. Para 9.2 of Direction 90 provides:

   (1)Decision-makers must consider the extent of any impediments that the non­citizen 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.

5. In his submissions made to the delegate, the Applicant claimed that he would face hardship if he were returned to Vietnam because:

   I have fear of seeing my relatives and friends keep a distance from me as they knew I was once a criminal and am not well educated. I am not sure how the Vietnamese Government would treat me – a related-drug criminal, but perhaps they would consider me as a society problem. This is to say that it is really difficult to return to my country without a good education.[53]

   (Without alteration.)

   [53] R1/61.

6. This consideration must be viewed in light of the fact that the visa, if in effect reinstated, will expire in March 2022 in any event which will mean that the Applicant will have to return to Vietnam unless he is able to obtain another visa. Whether he would be successful in obtaining another visa is a matter of speculation noting that he may have difficulty obtaining certain classes of visa given that he does not pass the character test because of his convictions. Even if the Tribunal were to find that there is “another reason” why the mandatory decision to cancel the visa should be revoked under s 501CA(4)(b)(ii), such a finding will not alter the fact that the Applicant fails the character test. The Applicant came to Australia on a student visa, the nature of such a temporary visa requiring the Applicant to return to Vietnam. Accordingly, the Applicant will, even if the Tribunal revokes the cancellation of the temporary student visa, have to establish or re-establish himself in Vietnam in March 2022 when the visa expires.

7. In any event, the Tribunal does not accept that the matters identified by the Applicant and his claimed fears of how he will be received by his family or the government of Vietnam if he were to return to Vietnam are impediments to the Applicant establishing and maintaining basic living standards. He only left Vietnam in 2015 on a temporary visa to study in Australia. He still has significant family in Vietnam and he conceded at the hearing that if he were to return to Vietnam he would live with his mother, who is a retired accountant.[54] He had completed one year of an international economics degree at university in Vietnam and conceded under cross-examination, albeit somewhat reluctantly, that he could re-sit university entrance exams and resume his university studies in Vietnam.[55]

   [54] transcript at 29.

   [55] transcript at 23.

8. The Applicant has no health issues, is educated, is young, and would have the support of his family in Vietnam, including living with his mother. There is no evidence to suggest that he would not be able to establish and maintain basic living standards (in the context of what is generally available to other citizens of Vietnam). This consideration weighs against revocation of the cancellation of the Applicant’s visa.

   Impact on victims (para 9.3)

9. Paragraph 9.3 of Direction 90 is as follows:

   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.

10. Neither party made any submission on this consideration.

11. The wording of this consideration is materially the same as that of para 14.4 of Direction 79. As this Tribunal noted in respect of the same provision in Direction 79 in Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[56] at [109]–[111] and in Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[57] at [138]–[139], although para 9(1)(c) of Direction 90 and the heading to para 9.3 refer only to impact on victims, para 9.3(1) requires consideration of the impact of a decision not to revoke the cancellation of the visa on members of the community, including victims (emphasis added).

    [56] [2020] AATA 4171.

    [57] [2020] AATA 5165.

12. Insofar as a consideration broader than the impact on victims is required, then one aspect of the possible impact of the Applicant being permitted to stay (i.e. a decision to revoke the cancellation) has been dealt with under the first primary consideration, the protection of the Australian community. The impact of the Applicant’s removal (i.e. a decision not to revoke) is also considered below in the consideration of the Applicant’s links to the Australian community under para 9.4 of Direction 90 and in considering the best interests of minor children under para 8.3. Insofar as the impact on those members of the Australian community is to be considered, the Tribunal does so under those considerations.

    Links to the Australian community (para 9.4)

13. Paragraph 9.4 of Direction 90 provides:

    Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.

    Strength, nature and duration of ties to Australia (para 9.4.1)

14. Paragraph 9.4.1 of Direction 90 is as follows:

    (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.

15. The Applicant’s then lawyers’ submissions made to the delegate following the invitation under s 501CA(3) in relation to this consideration,[58] albeit that submissions were addressing the equivalent consideration under Direction 79, were to the effect that:

    [58] R1/73.

    (a)the Applicant came to Australia in 2015 as a teenager to complete his high school studies;

    (b)he has therefore spent a significant time in Australia;

    (c)he has lived with his cousin;

    (d)he has maintained employment;

    (e)he has formed a long-term relationship with an Australia citizen;

    (f)if he is removed from Australia there will be significant emotional impact for the Applicant and those close to him;

    (g)the Applicant has social links in the Australian community and is well-regarded; and

    (h)para 6.3 of Direction 79 provides that “Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age”.[59]

    [59] The Tribunal notes that under Direction 90, this submission would relate to para 5.2(4).

16. The Minster submitted that:

    (a)the Applicant arrived as a young adult and had only been in Australia for around 18 months before he started offending;

    (b)he lived in the community for around two years before his arrest during some of which time he had a lawful part-time job through which he contributed to the community;

    (c)the Applicant has spent a relatively short period contributing to the community, and any positive contributions he has made to the community are outweighed by his offending; and

    (d)the Applicant also has some relatives and friends in Australia, such as cousins, his aunt and uncle, and his girlfriend. Some of the Applicant’s family and his girlfriend may be adversely affected if his visa remains cancelled.

17. In relation to the Applicant’s submissions identified in [86] above, the Applicant was 19 years old when he arrived. He was not a young child. It is not correct to claim that he came to Australia to complete his high school studies. As Barone DCJ noted and as was confirmed by the Applicant at the hearing, not only had he completed his high school studies, but he had completed a year of a university degree in Vietnam. It is also not correct to claim that he has spent significant time in Australia. He grew up in Vietnam, he completed schooling and one year of university in Vietnam and came to Australia as a young adult in 2015. In the context of his life, he has spent only a relatively short period in Australia and, as the Minister noted, started serious offending within a relatively short time of his arrival.

18. The Tribunal does not accept the Applicant’s submission that the quoted passage from para 6.3(5) of Direction 79, which is in materially similar terms to para 5.2(4) of Direction 90 (see [21] above), provides any relief to the Applicant. To the contrary, the first part of para 5.2(4) is more applicable to the Applicant’s case, namely, that Australia has a low tolerance of criminal behaviour by those who hold a limited stay visa or who have been participating in and contributing to the community for only a short period of time. It is that part of para 5.2(4) that applies to the Applicant, not the part quoted by the Applicant.

19. A number of statements of support were included in the G documents. One statement, apparently made on 19 March 2021, appears to have been made by a friend of the Applicant, with whom he once had a relationship.[60] She says that they met through a mutual friend in 2016 and that she and the Applicant “realised that [they] were not mature enough at that time to further [their] relationship” but remained friends. She says that the Applicant has provided support to her while she suffers tension with her mother. Her statement does not evidence a particularly close relationship with the Applicant.

    [60] R1/77–79.

20. Statements were also provided by a former employer,[61] someone from the Vietnamese Buddhist  Association in Perth,[62] a former work colleague from the Applicant’s cousin’s nail salon,[63] the Applicant’s cousin (who owns the nail salon and is the mother of the two children referred to in [60] above)[64] and the husband of the Applicant’s other cousin referred to in [61] above.[65]

    [61] R1/80.

    [62] R1/83.

    [63] R1/87.

    [64] R1/95.

    [65] R1/100.

21. Apart from expressing a general desire for the Applicant to be allowed to stay in Australia, the above statements do not establish the existence any deep or long-standing ties to the Australian community.

22. The Tribunal accepts that the Applicant has some ties, primarily though his cousins and their children, to the Australian community, however, his contribution to and time spent in the community has been limited. This consideration does marginally weigh in favour of revocation of the cancellation of the Applicant’s visa, however, for the reason set out above only minor weight can be given to it.

    Impact on Australian business interests (para 9.4.2)

23. Neither party made a submission on this consideration. The Tribunal is satisfied that it is not relevant in the present case.

    THE WEIGHING EXERCISE

24. Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account. It provides:

    (1)  In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (2)  Primary considerations should generally be given greater weight than other considerations.

    (3)  One or more primary considerations may outweigh other primary considerations.

25. A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[66] and the Full Court of the Federal Court judgment in Minister for Home Affairs v HSKJ.[67]

    [66] [2018] FCA 594; (2018) 74 AAR 545.

    [67] [2018] FCAFC 217; (2018) 266 FCR 59.

26. The tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:

    Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...

27. The Tribunal follows the approach directed by the above cases.

28. Looking at the first primary consideration, the protection of the Australian community, for the reasons set out above (see [55]), the Tribunal finds that this consideration weighs against the revocation of the cancellation of the Applicant’s visa and that moderate weight should be given to it.

29. The second primary consideration, family violence, is not relevant in this case.

30. The third primary consideration, the best interests of minor children, for the reasons set out in [58]–[64] above, does not weigh in favour of revocation of the cancellation of the visa.

31. The fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the Applicant’s visa. For the reasons set out at [72] above, significant weight should be given to this consideration.

32. In relation to the “other considerations” identified in Direction 90, for the reasons set out in [77]–[79], the consideration of the extent of impediments weighs against revocation of cancellation of the Applicant’s visa. The consideration of the impact on victims as directed by para 9.3 of Direction 90, insofar as it encompasses the impact on members of the community other than victims, is covered by the Tribunal’s considerations of other paragraphs of Direction 90 (see [82] and [83] above) and insofar as para 9.3 calls upon the Tribunal to consider the impact of a decision under s 501CA of the Act on victims, there is no evidence before the Tribunal upon which it can make any assessment. The consideration of the links to the Australian community weighs in favour of revocation of the cancellation of the Applicant’s visa, however, for the reasons set out in [88]–[93] above, only minor weight can be given to this consideration.

33. Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against the revocation of the cancellation of the Applicant’s visa, the Tribunal finds that the considerations against revocation outweigh those in favour of revocation. Accordingly, the Tribunal finds that there is not another reason why the decision to cancel the Applicant’s visa should be revoked.

    DECISION

34. The decision of the delegate of the Minister dated 14 April 2021 not to revoke the cancellation of the Applicant's Class TU Subclass 500 Student (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................

Associate

Dated: 9 July 2021

Date of hearing:	28 June 2021
Applicant:	In person
Counsel for the Respondent:	Mr J Papalia
Solicitors for the Respondent:	Australian Government Solicitor