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

Ospina and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3529 (14 September 2020)
Division:GENERAL DIVISION
File Number: 2020/3850
Re:Ospina
APPLICANT

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

DECISION
Tribunal:Senior Member Tavoularis
Date:14 September 2020
Place:Brisbane

The decision under review is affirmed.
...............................[SGD].........................................
Senior Member Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Partner (Class BS) (Subclass 801) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Lee and Minister for Home Affairs (Migration) [2019] AATA 861
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Contents
Introduction and background
Issues
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
Summary of the Applicant’s Criminal History
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Conclusion: Primary Consideration A
Primary Consideration B: The Best Interests of Minor Children in Australia
The Applicant’s written evidence
Cross-examination of the Applicant
Application of Factors in Paragraph 13.2(4) of the Direction
Conclusion: Primary Consideration B
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Conclusion
Decision
REASONS FOR DECISION
Senior Member Tavoularis
14 September 2020
INTRODUCTION AND BACKGROUND

Mr Alexander Osorio Ospina (“the Applicant”) is a 52 year old citizen of Colombia.[1] Movement records indicate that the Applicant arrived in Australia on 8 December 1997 and has not left Australia since that date.[2] The Applicant arrived into Australia on a Tourist (Subclass 676) visa. Subsequently, on 29 May 2007, the Applicant was granted a Partner (Class BS) (Subclass 801) visa (“the visa”).[3]
[1] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions “SFIC”, page 1, paragraph [3].
[2] Exhibit G1, s501 G Documents, G10, page 69.
[3] Exhibit R1, Respondent’s SFIC, page 1, paragraph [4], and see Exhibit G1, s501 G Documents, G10, page 66.
The Applicant has a short but extremely serious criminal history in Australia. Uniquely in matters of this type, his offending history involves the commission of a single offence in Australia, comprising Conspiracy to possess commercial quantity – unlawfully import border-controlled drugs. This offending came before the District Court of New South Wales (held at Sydney) for sentencing on 10 July 2009. The Applicant was convicted and sentenced to a head custodial term of imprisonment for 20 years.
The custodial term commenced on 13 July 2007 and contained a non-parole period of 12 years. The non-parole period commenced on 13 July 2007 and expired on 12 July 2019. Upon serving his time in criminal custody, the Applicant was taken into immigration detention. He has therefore been removed from the Australian community on a continuous basis since 10 July 2009.
While serving the abovementioned term of imprisonment, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 12 September 2018 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[4]
[4] Ibid, page 2, paragraph [6], see Exhibit G1, s501 G Documents, G9, pages 61-65.
On 11 October 2018, the Minister’s Department received correspondence from the Applicant requesting revocation of the decision to mandatorily cancel his visa.[5] The delegate of the Minister decided on 22 June 2020, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[6]
[5] Ibid, paragraph [7], see Exhibit G1, s501 G Documents, G12, pages 74-107.
[6] Ibid, paragraph [8, see Exhibit G1, s501 G Documents, G1, page 10.
The Applicant lodged an application with this Tribunal on 26 June 2020, seeking a review of the abovementioned decision dated 22 June 2020 not to revoke the cancellation of his visa.[7] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[8]
[7] Exhibit G1, s501 G Documents, G1, pages 1-6.
[8] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The hearing of the instant application proceeded on 31 August 2020. The hearing received oral evidence from: (1) the Applicant; (2) the Applicant’s wife; (3) the Applicant’s step‑daughter; (4) the Applicant’s biological daughter; and (5) a family friend/prospective employer of the Applicant, Ms LB.
The Tribunal also received written evidence. This written evidence was particularised into an exhibit list, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[9]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[10]
[9] [2018] FCAFC 151.
[10] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[11] I will address each of these grounds in turn.
[11] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which 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”.
Having regard to the abovementioned summary of the Applicant’s offending, with particular reference to the custodial term imposed on him involving 20 years of custodial time, it is beyond argument that the Applicant does not pass the character test by virtue of his “substantial criminal record” as that term is defined in s 501(7)(c) of the Act. He clearly does not pass the character test pursuant to s 501(6)(a) of the Act.
Prior to and at the hearing the Applicant’s representative did not cavil with the contention that the Applicant did not pass the character test due to the application of s 501(7)(c) of the Act and its definition of a “substantial criminal record”. In his SFIC, the Applicant makes the following concession:
“10. As to the first issue, the Tribunal would not be satisfied that the applicant passes the character test in s501 of the Act. Concerning the applicant’s conspiracy offence, the applicant received a head sentence of 20 years imprisonment with a non-parole period of 12 years.
11. Given that the applicant received a head sentence of at least 12 months imprisonment, it follows that the applicant cannot pass the character test for present purposes. Accordingly, the first issue to be determined by the Tribunal is not contentious for these proceedings.”[12]
[12] Exhibit A1, Applicant’s SFIC, page 3.
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[13] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[14]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[13] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[14] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)    International non-refoulement obligations;
b)    Strength, nature and duration of ties;
c)    Impact on Australian business interests;
d)    Impact on victims;
e)    Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[15]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[15] [2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they 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;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to 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 Applicant’s Conduct to Date
Summary of the Applicant’s Criminal History
The nature of the Applicant’s offending, albeit singular offending in this country, is such as to immediately attract the attention of the relevant Principles appearing at paragraph 6.3 of the Direction. Principle (1) refers to Australia’s sovereign right to determine whether non‑citizens who are of character concern are to be allowed to enter into and/or remain in Australia. Principle (2) refers to the Australian community’s expectation that the Australian Government should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere. Principle (4) mandates that in some circumstances the nature of a non-citizen’s criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.
It is readily conceded in the Applicant’s SFIC that:
“140. On 10 July 2009, the applicant was convicted in the District Court of New South Wales with conspiring with various co-offenders to possess cocaine (the substance having been unlawfully imported). The quantity to be possessed was a commercial quantity.
141. It must be readily accepted that the applicant’s conspiracy offence is very serious. The applicant’s criminality occurred over three months. The total quantity of powder seized by the Commonwealth was 35.07 kilograms. The pure quantity of cocaine contained in the powder was 28.29 kilograms.
…
[16] Exhibit A1, Applicant’s SFIC, pages 50 and 52.
153. Considered in totality, cl 13.1.1 weighs heavily against the revocation of the mandatory cancellation decision.”[16]
The factual circumstances surrounding the Applicant’s commission of the subject offence are adequately particularised in the first six pages of the sentencing remarks of the learned sentencing Judge, His Honour Judge Marien SC of the District Court of New South Wales, when sentencing the Applicant on 10 July 2009.[17]
[17] Exhibit G1, s501 G Documents, G6, see pages 42-56 (inclusive).

Suffice it to say that the Applicant’s role in the conspiracy that of a co-conspirator offender for commercial gain. As noted by the learned sentencing Judge:
“The facts, as I have found them, disclose the commission by the offender[18] of an offence of extreme seriousness. That is clearly reflected in the applicable maximum penalty, which, as I have said, is life imprisonment. The offender, over a period of some three and a half months, actively participated in a conspiracy to obtain possession of a vast quantity of cocaine worth millions of dollars. At the suggestion of [a co-conspirator FG], the offender was recruited by [a co-conspirator S] to assist in obtaining possession of the cocaine. I find that the offender participated in the plan to represent himself as the new “owner” of the container. He leased the storage unit at Kennards at Auburn and I find that he took part in counter surveillance at SBI Shipping and Kennards, and that he followed the container when it was moved to Eastern Creek on 19 May.
On 17 May in intercepted telephone calls, [a co-conspirator FG] spoke to the offender about the obtaining and suppling of drugs. As I have said, there was a clear available inference on the evidence that the drugs referred to was the cocaine in the container. Further, the offender remained in telephone contact with [a co-conspirator FG] arranging to meet with him after the unpacking of the pots on 12 July [2007].”[19]
[My emphasis and underlining]
[18] Note: the reference to “the offender” throughout Judge Marien SC’s sentencing remarks quoted in this decision refers to the Applicant.
[19] Exhibit G1, s501 G Documents, G6, pages 46-47.
The learned sentencing Judge applied the usual and necessary sentencing principles in determining the Applicant’s culpability with particular reference to the comparative culpability of his co-offenders, specifically, [co-conspirator S]. Judge Marien SC noted:
“In assessing the nature and circumstances of an offence of this kind it is relevant to take into account the amount of the drug involved. In this case the amount was substantial being more than fourteen times the commercial quantity. Further, I am satisfied beyond reasonable doubt that the accused knew that it was a substantial quantity. That is a significant matter in sentencing for offences of this kind…”[20]
[My emphasis and underlining]
[20] Ibid, page 49.
In applying relevant sentencing principles, Judge Marien SC further noted:
“However, the amount of drug involved cannot be said to be the determinative factor in assessing the objective seriousness of such an offence;…It is also necessary in determining an offender’s culpability to assess the level at which the offender operated in the criminal organisation…It is also necessary to bear in mind the principles applicable upon sentencing for an offence of conspiracy to which I earlier referred. I must also bear in mind that I can only pass a sentence of imprisonment if, having considered all other available sentences, I am satisfied that no other sentences are appropriate in all the circumstances…”[21]
[21] Ibid, pages 49-50.
In applying the principle of parity in sentencing, Judge Marien SC made the following comparative remarks between the conduct of co-conspirator S compared to that of the Applicant:
“The [co-conspirator S] was sentenced…on 12 August 2008. He is the only co‑conspirator to have been sentenced up to this time. [Co-conspirator S] pleaded guilty in the Local Court to the same charge brought against the offender. He was given a twenty five per cent reduction in his sentence by his Honour for his plea of guilty at the first available opportunity. [Co-conspirator S] was found by his Honour to have had no previous convictions other than a drink driving matter for which he received a fine…His Honour also said that [co-conspirator S]’s involvement in the conspiracy ended on about 22 May 2007 when he went overseas. His Honour found that [co-conspirator S]’s involvement in the conspiracy was limited to five to seven days in May 2007…As I previously stated, the evidence at trial here was that [co‑conspirator S] recruited the offender into the conspiracy in early April 2007.
In any event, the offender participated in the conspiracy for a longer period than [co‑conspirator S] who, I find, left the conspiracy at the end of May. The offender continued in the conspiracy until his arrest on 13 July.”[22]
[22] Ibid, pages 50-51.
In referring to the sentence imposed on [co-conspirator S] for the purposes of the parity principle in the sentencing of the Applicant, Judge Marien SC noted:
“[Co-conspirator S] was sentenced…on the basis that he had provided considerable assistance to the authorities and had undertaken to give evidence against his co‑conspirators including the offender before me. For both his plea of guilty and his assistance to the authorities, his Honour reduced [Co-conspirator S]’s sentence by forty percent of which five per cent was for his future assistance. His Honour, after taking into account a schedule of comparative sentences…, determined that a head sentence of twenty years imprisonment was appropriate. However, following upon the reduction of the forty per cent to which his Honour referred, his Honour imposed a total sentence on [co-conspirator S] of twelve years imprisonment with a non‑parole period of eight years and eight months imprisonment.
…
…There are, of course, significant differences between the subjective cases of the offender and [co-conspirator S]. [Co-conspirator S] pleaded guilty at the first reasonable opportunity and he gave considerable assistance to the authorities. The offender was found guilty after trial and he has given no assistance to the authorities, not of course that he is to be penalised in any way for taking the course that he did, to plead not guilty and that he determined not to provide assistance to the authorities. The other marked difference was that [co-conspirator S] was effectively sentenced on the basis that he was of prior good character, although of course as is well recognised in the authorities for offences of this kind, prior good character is given little weight by way of mitigation in the sentencing exercise.”[23]
[23] Ibid, pages 52-53.
The nature and seriousness of the Applicant’s offending can be readily gleaned with specific reference to the learned sentencing Judge’s remarks on the question of parity:
“However, on the question of parity, the real issue is the respective criminal culpability of the offender and [co-conspirator S] in the commission of the offence…The Crown alleged at trial, and I so find, that the offender was recruited into the conspiracy by [co-conspirator S]. The Crown asserted, and I accept on the evidence, that the offender was to take on the role of the new owner of the container to give the enterprise an air of legitimacy. Mr Whitehead[24] concedes that the evidence establishes that the offender’s role in the conspiracy was that of a facilitator who provided a legitimacy that the co-conspirators were not prepared or able to provide. I would add to that that the conspirators would have been keen, I am sure, to ensure that by the offender representing himself as the new owner of the container, they would be kept at a safe distance from it…After [co-conspirator S] left the conspiracy at the end of May, the offender continued his participation in the conspiracy up to the time of his arrest on 13 July. Whilst neither [co-conspirator S] or the offender could be properly characterised as “principals” in the conspiracy, they both had important and significant roles to play in it. And as I have said, I find that whilst they were both parties to the conspiracy, [co-conspirator S]’s role was somewhat more important than that of the offender before me.”[25]
[My underlining and emphasis]
[24] The Applicant’s Counsel at the sentencing hearing.
[25] Exhibit G1, s501 G Documents, G6, pages 53-54.
In terms of ultimate findings prior to the imposition of the actual sentencing regime, Judge Marien SC noted the following:
“Taking into account the respective roles of the offender and [co-conspirator S] and taking into account that while he was a party to the conspiracy [co-conspirator S] played a more significant and active role than the offender, and further taking into account that the offender participated in the conspiracy over a longer period than [co-conspirator S] and also taking into account their respective subjective cases, I agree with the submission of the Crown that a sentence should be imposed on the offender comparable to the sentence imposed… on [co-conspirator S], absent his plea of guilty and assistance. In other words, in my view it is appropriate to impose comparable sentences on both offenders, the sentence being the sentence first arrived at by [the judicial sentencing officer who sentenced [co-conspirator S] with respect to [co-conspirator S] before he applied the discounts for the plea of guilty and the assistance given by [co-conspirator S].”[26]
[My underlining]
[26] Ibid, pages 54-55.
Having regard to the abovementioned well-made concessions on behalf of the Applicant, as well as the sentencing remarks of His Honour Judge Marien SC about the nature and seriousness of the Applicant’s offending, I am of the view that this aspect of the analysis can be treated with relative brevity. Given the concessions, the extremely serious nature of the offending and the findings of the learned sentencing Judge, I do not consider it is necessary to embark on a lengthy and protracted discussion to demonstrate why the Applicant’s offending should carry a label of either “very serious” or “extremely serious”.
The following discussion about the nature and seriousness of the Applicant’s offending will be predicated on an application of the relevant factors contained in Paragraph 13.1.1(1) of the Direction. I will further particularise how the Applicant’s offending attracts operation of the relevant sub-paragraph(s) of the Direction in the assessment of the nature and seriousness of the Applicant’s conduct.
Application of Factors in Paragraph 13.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors is:
(a)…
(b)…
(c)…
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)…
(f)…
(g)…
(h)…
(i)…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The material does not disclose any instance of the Applicant committing violent or sexual crimes. The singular offence he committed was not committed in this realm of offending. This sub-paragraph (a) is not relevant to determination of this application.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. The Applicant’s history reveals no instances of violent conduct towards women or children. This sub-paragraph (b) is not relevant to determination of this application
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” There is no evidence of such offending, and as a result, this sub-paragraph (c) is not relevant to determination of this application.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by an applicant.
As mentioned earlier, the circumstances of the Applicant’s offending are, for applications such as the instant one, relatively unique. He arrived in Australia in December 1997. In 2007, he committed his singular offence involving extremely serious offending relating to a Conspiracy to possess a commercial quantity – unlawfully import border-controlled drugs, which, if contemporary media reporting[27] is to be accepted, involved the unlawful importation of cocaine worth some $35 million. This conspiracy offence carries a maximum penalty of life imprisonment and/or a fine of $825,000.
[27] Ibid, G7, pages 57-59.
There can be no favourable or less severe application of this sub-paragraph (d) against the Applicant on the basis of the length of his offending history being a short one. Such a contention is to be rejected. The “single offence” committed by this Applicant involved extremely serious drug offending. This Tribunal has previously found that even a single offence can constitute a substantial criminal record:
“The applicant claims that his criminal history cannot be said to be extensive or otherwise substantial. However, the Tribunal does not agree with the applicant’s assessment, which appears to suggest that a determination of whether a criminal record is substantial is limited to the number of offences or their frequency. In the Tribunal’s view, a criminal record may be substantial by reference to the nature of the offences and even a single significant offence can constitute a substantial criminal record.”[28]
[My underlining]
[28] Lee and Minister for Home Affairs (Migration) [2019] AATA 861 at para [27] (per SM Raif)
Rather, this sub-paragraph (d) must be applied stringently against the Applicant on the basis of the extreme seriousness of the offence. As was made clear in the sentencing remarks of Judge Marien SC, the only “discounts” to be found or applied in any sentencing regime against the Applicant had nothing to do with the absence of any prior criminal offending by the Applicant. Instead, His Honour, with respect, rightly sought to find and/or apply any discounts on a comparative basis with such discounts afforded to [co-conspirator S].
In other words, Judge Marien SC looked for any early plea of guilty by the Applicant and found none. His Honour looked for any measure of assistance provided by the Applicant to prosecuting authorities and found none. Rather, the Applicant came before Judge Marien SC for sentencing at the conclusion of a fully ventilated jury trial, at the end of which the Applicant was found guilty by a jury of his peers. A head custodial term of 20 years was imposed, with a non-parole period of actual time to be served of 12 years. The length of this sentence is extraordinary, especially for a first-time offender. By his 12^thyear in this country, the Applicant committed an offence of such extreme severity that his head custodial term amounted to his total time in this country to that sentencing point plus another eight years.
Put another way, his offending was sentenced by the imposition of a head custodial term representing approximately 165% of his 12-year period of time in this country to that sentencing point. The sentencing remarks of Judge Marien SC rendered the Applicant’s offending to be “extremely serious”. There can be no other finding, given that the offending involved a volume of unlawful drugs more than 14 times the commercial quantity.
Accordingly, for the purposes of this sub-paragraph (d), it surely cannot be denied that the sentencing regime imposed upon the Applicant by the New South Wales District Court on 10 July 2009 militates very strongly in favour of a finding that the subject sentence imposed for the Applicant’s offence renders the totality of his offending as extremely serious.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. This Applicant has committed a singular, albeit extremely serious, offence. As such, no level of frequency or trend of increasing seriousness can reasonably be found. This sub-paragraph (e) is not relevant to determination of this application.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. I accept that this Applicant is not a repeat offender, and, on that basis alone, his offending does not attract application of this sub-paragraph (f).
That said, I most certainly am of the view that the Applicant’s offending would have had, if not as a “cumulative effect”, then, at the very least, a most certainly extremely serious and deleterious effect on the Australian community. I will record my comments on this aspect of the Applicant’s extremely serious offending later in these Reasons when I discuss the nature of the harm that would be occasioned were he to re-offend.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. The material does not disclose any instance of the Applicant providing false information either to the Respondent or to any other element of lawful authority. This sub-paragraph (g) is not relevant to determination of this application.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. I am not able to glean any such letter or other communication containing any such formal warning from the Respondent or any other element of lawful authority. This sub-paragraph (h) is not relevant to determination of this application.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. Subject to my following comments about the chapeau to paragraph 13.1.1 of the Direction, there is no evidence of this Applicant having committed a crime while in immigration detention in Australia. This sub-paragraph (i) is not relevant to determination of this application.
The chapeau to the factors at paragraph 13.1.1 of the Direction reads as follows:
“(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 factors including: …”
[My underlining]
There are several further aspects to the Applicant’s conduct which, although not directly captured by the nine factors at paragraph 13.1.1(1) of the Direction, nevertheless constitute “other conduct” relevant to an assessment of the nature and seriousness of the Applicant’s conduct.
The material reveals at least three instances involving adverse conduct attracting the attention of the jail administrators committed by the Applicant during his time in criminal custody. Those instances are described in the material as follows:
(i)on 5 September 2007: “Damage/destroy property – $30 compensation, and seven days off the television.”
(ii)on 21 December 2011: “Possess/create prohibited goods – proven – dismissed”;
(iii)on 9 February 2014: “Steal – reprimand and caution”.[29]
[29] See Exhibit G1, s501 G Documents, G5, page 41.
These three instances were put to the Applicant in his evidence in chief. He responded as follows:
“DR DONNELLY:[30] Yes, sir, sorry. So, thank you for that. Now, did you have any big problems in prison, or it was - it was a fairly unremarkable time?
WITNESS: Like problem - like fighting, (indistinct)?
DR DONNELLY: Yes.
WITNESS: Look, I have three charge in gaol. In 2007 when I go inside they send me to - to Parklea. When you don’t know yet because I go (indistinct) to my room with my cell mate. Is - my cell mate have (indistinct) TV. Inside to the - to the room is a small plastic bag. The (indistinct) go inside to the plastic bag. But the cable is outside to the plastic bag. So we move the TV, we (indistinct) the cable. After two days the officer he come, he say we damage this cable.
DR DONNELLY: I see.
WITNESS: So - yes, we say, ‘No, we not damaged this.’ Say, ‘Yes, you damaged it.’ We say, ‘No, we - when we come to here the cable is outside so we put the TV there because the (indistinct) on the screen.’ (Indistinct) when you come to here, if (indistinct) is damage you have to report (indistinct). If you not report you have to admit you are the person do the damage. If you not admit that, if you - you have to pay for (indistinct). Sixty dollar. So thirty dollar each person. If you not paying that, you lose your TV. So we agree (indistinct) we pay - - -
DR DONNELLY: All right - - -
WITNESS: This is the - this is the first charge. The second charge - when I working in Kempsey - you know, outside two year ago in the (indistinct) - in maximum security - (indistinct) you have to do - (indistinct). So when I working (indistinct) I working with a chief - with the chief officer (indistinct). We stick a lot of (indistinct) to the sticky tape in the paper to fix a lot of stuff. And the officer, he come to - for me - because I have to go to master. So I put the sticky tape in my pocket. And we run to master, when we go to master (indistinct) master normally they search you. So when they search me I say to the officer, ‘Look, I have the sticky tape from the officer.’ So the officer he say, ‘Don’t worry, it’s nothing (indistinct) you go to your room.’ So I go to my room. Two days later they say I tried to stealing the sticky tape by my chief officer (indistinct) he (indistinct) say, ‘No, he’s not stealing the sticky tape. It’s a mistake.’ So they take out this charge. And after that when I go back to Nowra Correctional Centre, Nowra is only gaol in the system here they have all the electronic - you - they have TV, they have (indistinct) they have (indistinct) they have everything. So all your property - they put it in the - in reception. Because everything is there, yes? And I working for - for the chief officer in Nowra. We - this is our weekly time. I say to my officer, ‘Look, my TV is damaged. The screen is damaged.’ So, my officer he say, ‘Look, you (indistinct) this TV on Monday - Monday you (indistinct) TV to here to (indistinct) this.’ I say, ‘Okay.’ I take the TV, I put it in my room. Every Sunday in Nowra they do search (indistinct) - (indistinct) search, so (indistinct) and everything. So when they do the search, I put the TV under my pillow, yes? Because I don’t want (indistinct) see I have another TV there. So when the officers (indistinct) he told me (indistinct) TV outside, it’s – [prison officer’s name redacted], he give me. He say (indistinct) this, (indistinct) I said to you before. I say he take the TV - in the afternoon they call me to the main office - they told me you trying to steal the TV. I say, ‘Sir, I have my own TV in - reception - I have my own stuff in reception - I’m not trying to steal the TV. (Indistinct) my TV, (indistinct),’ and you can - if you not believe me you can [prison officer’s name redacted], the chief (indistinct). He say, ‘All right, I wait until Monday to we come back.’ Monday, (indistinct) [prison officer’s name redacted] (indistinct) had a confrontation. Everything is true, so the physical one from Nowra - he told me, ‘Look, the officer, he (indistinct) to (indistinct) in the computer. So, don’t worry, I just put it dismissed.’ I say, ‘Okay.’ This is the only three charge I have in gaol.
DR DONNELLY: All right.”[31]
[30] Dr Jason Donnelly of Counsel, representative of the Applicant.
[31] Transcript, 31 August 2020, page 13, lines 35-47, and page 14, lines 1-47, and page 15, lines 1-7.

While I am of the view that the above-described conduct may constitute “other conduct” in the abovementioned chapeau to paragraph 13.1.1(1) of the Direction, I am of the further view that a very cautious and circumspect reading of the above-quoted portions of the Transcript are required prior to the allocation of any weight adverse to the Applicant. On the basis that the Applicant’s evidence is to be accepted (and no contrary evidence was called by the Respondent), then the above “offences” are, in the main, little more than inadvertent transgressions or miscommunications by either or both of the Applicant and his fellow prisoners or the jail administrators.
With reference to the first offence, having regard to the Applicant’s evidence, it is somewhat of a stretch to suggest that the Applicant deliberately set out to damage and destroy his cellmate’s TV cable. Ultimately, the purported damage was duly rectified by payment of money to replace the cable and the Applicant readily agreed to do so and to otherwise have the circumstances of this incident put behind him. With reference to the second offence, it is similarly a stretch to suggest that the Applicant somehow intentionally wanted to improperly take and retain the subject packing tape. It is notable that the circumstances of this incident arose at a time when the Applicant was in a trusted position working outside the strict confines of his custodial arrangements. It would not be unfair to suggest, with respect, that perhaps those supervising him may have done a more thorough job of checking what was on the Applicant’s person at the end of a work stint.
With reference to the third offence, while the Applicant’s explanation of this offence may not be immediately clear from his words spoken in examination in chief, it is clear that the Applicant did not need to steal any TV because, as he said, he already had one “in reception”. Ultimately, in the absence of any further justification or particularisation of the asserted offence, I am reluctant to find it is of any further moment – in terms of adverse weight to the Applicant - than the other two offences.
Taken in their totality, the three subject offences referred to in the material apparently committed while the Applicant was in criminal custody are not capable of characterisation as offences of any demonstrable significance or seriousness such as to attract weight as “other conduct” pursuant to the abovementioned chapeau. To summarise, while it may be conduct captured by the chapeau, it is not conduct that leads to any measurable weight against the Applicant.
The next “conduct” that can be captured as “other conduct” pursuant to the abovementioned chapeau comprises the Applicant’s admission at his trial (for the extremely serious drug offending) of his previous involvement in the supply of a significant quantity of cannabis. Once again, the evidence surrounding this “other conduct” must be approached with caution. Such caution can be tempered on three bases. First, Counsel who represented the Applicant at the sentencing hearing did not cavil with Judge Marien SC’s direct reference to this specific other offending while sentencing the Applicant. Second, Counsel for the Applicant made no submission to contend that the Applicant was previously a man of good character, presumably on the basis of the Applicant’s admission at the trial regarding his past conduct relating to the supply of cannabis. Third, Judge Marien SC’s conclusion that “there was clear evidence in the trial” of the Applicant’s past conduct in relation to the supply of a significant amount of cannabis. The relevant portion of Judge Marien SC’s sentencing remarks is as follows:
“Mr Whitehead of counsel who appears for the offender did not submit on sentence that I should find that he is a man previously of good character. That is understandable given the offender’s admission at the trial that he was involved at least in the supply of a significant quantity of cannabis but also, as I have indicated, that there was clear evidence in the trial from the telephone intercepts both in May and June of 2007, that the offender was involved in the trafficking of other drugs.”[32]
[32] Exhibit G1, s501 G Documents, G6, page 49.
This specific passage of Judge Marien SC’s sentencing remarks was put to the Applicant in cross-examination. His explanation was tepid and unconvincing. I sought to intervene in the cross-examination and suggested that the sentencing remarks are now some 11-12 years old, and it would be unfair on the Applicant to be now compelled to explain why those remarks were made or the basis upon which those remarks were made, without the opportunity to review the Transcript of his evidence at the trial. The following transpired during cross-examination:
“MS SAUNDERS:[33] In the third paragraph, it says, “Mr Whitehouse”, who I understand was your counsel:
[33] Ms Charlotte Saunders, Senior Associate, Minter Ellison.
Did not submit on sentence that the Judge should find that you are a man previously of good character.
And the Judge says:
That is understandable, given your admission at the trial that you were involved, at least in the supply of a significant quantity of Cannabis.
WITNESS: I don’t know what he talking about there.
MS SAUNDERS: You don’t know. So, you don’t remember making that admission, is that what you’re saying?
WITNESS: Honesty, I don’t know what is my counsel at this time talking about there.
MS SAUNDERS: That’s not the counsel, that’s the Judge. So, the Judge has said that you admitted at trial that you were involved with at least the supply of a significant quantity of Cannabis.
WITNESS: I cannot - I cannot (indistinct).
MS SAUNDERS: Yes, okay, I can repeat that. It wasn’t your Barrister who said that, it was the Judge. And so, what the Judge said was that during your trial, you had admitted that you were involved with at least the supply of a significant quantity of Cannabis.
WITNESS: Honesty, this is 13 years ago, I cannot remember that. I don’t know what he’s talking about. I - I don’t know, I can’t (indistinct). Can’t have my rights or not answer about that because that one is - he give me some possible (indistinct).
SENIOR MEMBER: Ms Saunders, it just might be enough for the applicant to answer that he doesn’t recall making or giving that evidence at his hearing. I think, in fairness, he can’t really give any definitive or definitively reliable evidence on that specific question unless of course he’s given a chance of reviewing the transcript of the proceeding. Asking him to remember what he might have said in evidence 13 years ago is a long way in the past. I think it’s sufficient for present purposes and certainly for the direction that - and assessing the seriousness of the offending under the direction, that what you’re asking about has been recorded by the learned sentencing Judge in the sentencing remarks. I think that’s as far as we can go for direction 79 purposes.”[34]
[34] Transcript, 31 August 2020, page 26, lines 31-46, and page 27, lines 1-31.
What can be said about this reference to the Applicant’s past conduct involving “…at least…the supply of a significant quantity of cannabis…” is that he was sentenced on the basis of this admission being made at his trial and that the inclusion of this admission in the sentencing remarks was not challenged by the Applicant’s Counsel who appeared for him at the sentencing hearing. Accordingly, a moderate measure of weight adverse to the Applicant arises from this “other conduct” in favour of a finding that the totality of his offending must be characterised as “extremely serious”.
Having regard to the totality of the evidence to which the abovementioned relevant sub‑paragraph (d) and the chapeau of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s offending conduct can be readily characterised as “extremely serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non‑citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
There was unanimity in the respective positions of the parties regarding the nature of the harm to the Australian community should the Applicant again offend in the realm of the extremely serious type of offending for which he was sentenced in 2009.
The Respondent contends in its SFIC that:
“25. Taking these in turn, the nature of the harm to the Australian community should the applicant commit similar offending is incredibly serious. Australia's National Drug Strategy 2017 – 2026 notes that the Australian community faces both direct and indirect harm from drugs, including mental health trauma, violence or other crimes, engagement with the criminal justice system more broadly, and healthcare and law enforcement costs. Specifically in respect of stimulants such as cocaine, it is reported that their use can result in mental illnesses, cognitive impairment, cardiovascular problems and overdose and furthermore. Accordingly, the Minister's contends that should the applicant engage in similar offending in the future which would contribute to the accessibility of illicit substances in the wider community, the nature of the harm the Australia community would face is very serious.”[35]
[35] Exhibit R1, Respondent’s SFIC, page 5.
In his SFIC, the Applicant’s representative said:
“155. As to cl 13.1.2(1)(a), on the hypothesis that the applicant was to commit the conspiracy offence in the future, and the impugned drugs were to find their way into the Australian community, this would likely cause emotional, financial and physical harm to relevant victims and their families. There can be no doubting that the possession and deemed supply of prohibited drugs has a destructive impact on the Australian community.”[36]
[36] Exhibit A1, Applicant’s SFIC, page 52.
Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. On the basis of this paragraph 6.3(4), I think the Respondent’s abovementioned submission, as well as the Applicant’s concession, is correctly made.
I find that, were the Applicant to re-offend in a similar way, the inevitable likelihood is that his offending will result in very significant and, quite conceivably, catastrophic harm to (1) individual consumers of such illicit substances; (2) those that end up caring for them in a rehabilitative sense; and (3) the Australian community’s medical, law enforcement and judicial resources necessary to combat the scourge of illicit drugs impacting on that community.
It is therefore reasonable and safe to find that the potential consequences flowing from further similar or identical offending by this Applicant would be, at the very least, very serious to extremely serious. Were he to re-offend, I am of the view that its effect on a member or members of the Australian community – and indeed, the community as a whole - would be very serious to extremely serious and with, quite conceivably, catastrophic financial, physical and psychological consequences. The impact of the release of some $35 million worth of cocaine into the general community cannot be construed in any other way.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s written submissions
It is contended on the Applicant’s behalf that he is unlikely to engage in further criminal or other serious conduct in Australia. It is further contended (in the Applicant’s SFIC) that “…the risk of the applicant reoffending is sufficiently low as not to be unacceptable.”[37] The following factors[38] are propounded in support of these contentions:
[37] Ibid, see page 57, paragraph [157].
[38] Ibid, see page 52, paragraph [156] to page 57, paragraph [158].
(1)some 13 years has elapsed since the Applicant committed his extremely serious offence in mid-2007;
(2)the imposition of a head custodial term of 20 years with a non-parole period of 12 years (duly served by the Applicant) has served as a significant deterrent against any future criminality by this Applicant in Australia;
(3)the Applicant’s exposure to the rigours of the criminal justice system has caused him to never again want to be involved in such processes. In particular, it is noted that the Applicant endured three criminal trials, the first two resulting in hung juries while the jury in the third trial eventually reached a guilty verdict;
(4)the Applicant remains married with two daughters, one biological daughter and one stepdaughter. The Applicant has reached a realisation that further offending in Australia will lead to his removal and the consequent dissolution of the family unit;
(5)the Applicant “…has completed a notable number of educative, rehabilitative, and vocational courses…” during his period of criminal incarceration. These courses have caused the Applicant to be “…not the same person as when he committed the relevant conspiracy offence in 2007.”
(6)the Applicant has post-release plans in place upon any return to the Australian community. The relevant Pre-Release Report appearing in the material is dated 26 March 2019 and relevantly provides as follows:
“Post release plans
Accommodation
If released to Parole, [the Applicant] will be placed in the custody of the Australian Border Force. He indicated that if deported back to Colombia he has no set accommodation to return to, however, his family continues to reside there.
[The Applicant] has indicated that he has lodged an appeal against the cancellation of his Visa and if this appeal is successful he intends to return to his family home, with his partner and children at: [address redacted].
A home visit was conducted by City Community Corrections and the address has been assessed as suitable.
It is noted that [the Applicant] provided a letter from his employer confirming that when he is released he will work in a [name of employing entity redacted]. Attempts to contact his employer to further verify his employment details were not successful.
…
·Should [the Applicant] remain in Australia, he has adequate support networks in the community and has suitable post-release accommodation
·There is an appropriate post-release plan to assist [the Applicant] address his criminogenic factors and reintegration to community life.”[39]
[39]     Exhibit G1, s501 G Documents, G38, pages 658 and 660.
(7)it is contended that the Applicant has expressed “deep remorse” for his extremely serious offending and has an appreciation of the adverse impact of his offending on members of the Australian community. Again, the abovementioned Pre-Release Report is cited in support of this contention. While it may be contended that “the evidence of remorse is littered throughout the material in the G Docs,” any such contention must be tempered with the stark reality of what else appears in the Pre‑Release Report:
“Attitudes
As highlighted in the Pre-Sentence Report, [the Applicant] continues to deny any knowledge of his offending behaviour. During interviews he continued to rationalise his offending behaviours, stating that he was innocent and naïve in terms of trusting his friends and wanting to help them to establish their own business.
[The Applicant] reported that he accepted responsibility for his actions despite claiming his innocence. It is furthered that he was unable to explore alternative actions. Through the completion of the Practice Guide for Intervention exercise “offence mapping” [the Applicant] admitted that at some point he became suspicious of the package being illegal, however: “didn’t think it was what it was or the quantity”. He consistently minimised his offending behaviours stating that he “always helps others.”
Despite his failure to display insight into his offending behaviours and decision making, [the Applicant] was able to explore the impact his offending had on various aspects of his life and on potential victims. He highlighted that drug use destroys lives, families and the community through means of increased crime. He recalled his family being upset and “broken up” as a result of his offending behaviour. It is noted that he often expressed self‑concern when exploring the impact of his decision.”[40]
[40]     Ibid, page 655.
[My underlining]
It is, to my mind, very important to note that the above-quoted paragraphs make it clear that any remorse now purported to be expressed by the Applicant are conditioned by his continued denial of “any knowledge of his offending behaviour,” and his purported acceptance of responsibility for his actions “despite claiming his innocence.” The Pre-Release Report actually refers to “…his failure to display insight into his offending behaviours and decision making…” Perhaps most significant is the reality that this Pre-Release Report is dated 26 March 2019 and is one of the most proximate, if not the most proximate, independent assessment of the Applicant’s level of insight and remorse.
(8)the Applicant contends that his rehabilitation can be demonstrated by using his extensive period in prison to advance his own life and because he (1) gave counsel to young offenders; (2) exercised; (3) participated in chapel initiatives (that benefitted others inmates); (4) remained positive; and (5) vigorously engaged in learning the English language.
(9)it is contended that “There is an extensive range of expert evidence before the Tribunal that demonstrates that the applicant is no more than a low risk of reoffending in the Australian community.” A series of case note reports are cited to support this contention, each of which note the following:
·“22 July 2010 SORC[41] REVIEW NOTE: CP and LSIR recently completed – maintain employment, acceptable correctional behaviour and engage in education. Low risk rating according to LSIR.”[42]
[41]     Serious Offenders Review Council.
[42]     Exhibit G1, s501 G Documents, G22, page 177.
·“22 July 2010 SORC REVIEW NOTE: CP and LSIR recently completed – maintain employment, acceptable correctional behaviour and engage in education. Low risk rating according to LSIR.”[43]
[43]     Ibid, page 194.
·“30 April 2013 Inmate has low LSIr and is not suitable for any Compendium offence related programs.”[44]
[44]     Ibid, page 216.
·“23 November 2016 Irrespective of Nationality, inmate has an LSIR score of 8 for education and is therefore low need and not a priority for programs.”[45]
[45]     Ibid, page 243.
·“5 September 2017 LSI-R results: … Overall result: Raw score 8, rating low, test date 30-JUN-2010.”[46]
[46]     Ibid, G23, page 284.
·“22 January 2019
Risk assessment results
Level of Service Inventory (LSI-R)
An LSI-R was administered to [the Applicant] by [name redacted] (Probation and Parole Officer, Kempsey Community Corrections) on 30 June 2010. He was placed in the Low risk/needs category.
An LSI-R was administered to [the Applicant] by [name redacted] (Probation and Parole Officer, Blacktown Community Corrections) on 3 June 2009. He was placed in the Low risk/needs category.”[47]
[47]     Ibid, G37, page 650.
·“26 March 2019
[The Applicant] has been assessed at a Low risk of reoffending according to the Level of Service Inventory - Revised (LSI-R).”[48]
[48]     Ibid, G38, page 658.
·“12 September 2018
Immigration Risk Assessment
LSI-R Score: 8 low
There are no unusual circumstances having the potential to increase risk.
RISK LEVEL is determined as Low after considering all points.”[49]
[49]     Ibid, G23, page 256.
·“14 December 2017
[The Applicant]’s classification history between 23 July 2007 until 20 February 2017 demonstrates he graduated from a maximum-security prisoner (A2U rating) into a progressively lower or minimal security risk prisoner. This evolution of his security ratings went from A2U (23/7/2007), A2 (20/7/2009), B (1/3/2012), C1 (11/7/2015) to C2 (23/7/2016).”[50]
[50]     Ibid, page 290.
The contention about “the applicant has been assessed as a low risk of reoffending on the LSI-R” must be tempered against the reality that, as best as I understand the above references to the respective LSI-R score, that score is based on LSI-R testing conducted on two occasions, both of which occurred over a decade ago. As will be noted from the above, the first LSI-R test was conducted on 3 June 2009 and the second on 30 June 2010. As I further understood the above material, all subsequent references to the LSI-R score derive from either or both of the now greater than decade old tests conducted in 2009 and 2010 respectively.
·In its review dated 22 January 2019, the SORC further noted that:
“Upon entry into custody and since, this offender has not been identified as requiring any custodial based therapeutic intervention. He has continually and consistently undertaken education and employment and received positive reports in relation to his behaviour and attitude in custody.”[51]
[51]     Ibid, G37, page 652.
·Dr Rose Cantali is a Principal Psychologist whose report appears in the material and is dated 27 March 2020.[52] Dr Cantali conducted a mental state examination on the Applicant, which was unremarkable. She administered the Personality Assessment Inventory (PAI), which comprises a self-administered inventory that assesses psychopathological syndromes and provides information relevant for clinical diagnosis, treatment planning and screening for psychopathology. Dr Cantali’s report noted the following:
[52]     Ibid, G58, pages 722-730.
o“Validity of Test Results:
The PAI provides a number of validity indices that are designed to provide an assessment of factors that could distort the results of testing…the respondent’s elevated scores on these scales suggest some problems in understanding or attending appropriately to the PAI items. There appear to have been some idiosyncratic responses to particular items, and there were also some inconsistent responses to items with highly similar content….
…
With respect to positive impression management, the client’s pattern of responses suggests that he tends to portray himself as being relatively free of common shortcomings to which most individuals will admit, and he appears somewhat reluctant to recognize minor faults in himself…
With respect to negative impression management, there are subtle suggestions that the client attempted to portray himself in a negative or pathological manner in particular areas. Some concern about distortion of the clinical picture must be raised as a result; the respondent presents with certain patterns or combinations of features that are unusual or atypical in clinical populations but relatively common among individuals feigning a mental disorder…
oSummary:
…The psychometric assessment and clinical mental health assessment of [the Applicant] shows no evidence of [the Applicant] causing further legal problems if he were to remain in Australia…This report has evaluated whether [the Applicant] poses a threat to the Australian community. It is my professional opinion that following a clinical assessment of [the Applicant’s] psychological profile, [the Applicant] demonstrates an in depth understanding of the consequences of his wrong doings….The PAI was administered to assess [the Applicant’s] personality, mental health, and character. Whilst the results of the test were somewhat affected by language difficulties, the impression given indicated that [the Applicant] is unlikely to engage in antisocial or dangerous behaviours…Following my review of the PAI and clinical assessment, I am of the professional opinion to conclude no cause for concern regarding [the Applicant’s] personality, mental health, and character in that he maybe (sic) a risk to community. Furthermore, [the Applicant’s] reports of exemplary behaviour whilst serving his long sentence, and in the detention centre, further supports him as an individual who is reformed and unlikely to partake in criminal behaviours.”[53]
[53]     Ibid, pages 724, 725 and 729.
[My underlining]
While Dr Cantali’s report can be regarded as relatively current, dating from five months prior to the instant hearing, she was not called to give evidence in chief and thus neither her written nor oral evidence was subjected to testing under cross‑examination. Accordingly, any weight to be allocated to the findings and opinions of Dr Cantali must be limited to a certain extent.
(10)the contention of a low risk of re-offending is sought to be further propounded on behalf of the Applicant by reference to a number of Case Note Reports in the material that “…demonstrates that he is a changed man.” It is contended that the Applicant is a changed man and consequently at low risk of re‑offending because the subject Case Note Reports tell us:
·he has maintained acceptable correctional behaviour in prison;
·he has been a model prisoner;
·he has engaged in counselling for psychological wellbeing;
·he does not have significant criminogenic needs;
·he has completed a relapse prevention program;
·he is a trusted inmate;
·he was assessed as having no alcohol dependence;
·he produced consistent negative results on random urinalysis exams;
·his working standards are excellent;
·he has demonstrated a genuine want to learn and to move forward with his life;
·he is always willing to assist and show eagerness to learn;
·he was working well in public;
·he is a great role model to other inmates; and
·he has participated in the Kairos short course – a program dealing with choices, accountability, forgiveness and personal growth.
Commendable though these observed attributes of the Applicant while in criminal custody may be, I am not of the view that they are necessarily demonstrative of the level of his risk of re-offending. These notations and observations relate to the Applicant’s observed behaviours while in the closed confines of criminal custody. The critical question is whether the positive and apparently therapeutic nature of these observations will be consistently maintained by the Applicant in the general community, as has occurred in the closed confines of criminal custody/immigration detention.
(11)it is further contended on the Applicant’s behalf that he is apparently at a lower risk of re-offending due to his willingness to engage “with psychology services for a short time for coping strategies.” This contention is predicated on the basis that, if the Applicant has so engaged while in the closed confines of criminal custody, he will be more likely disposed to engage with “psychology services” in the broader Australian community. While I accept the basis of the contention, it is tenuous, at best, to suggest that the Applicant’s engagement with psychology services “for a short time” while in prison necessarily means that he will avail himself of such services in the broader community as a means of maintaining a low risk of recidivism.
(12)the following contention is, to my mind, perhaps the strongest factor militating against the Applicant re-engaging in extremely serious conduct of the type that has seen him removed from the Australian community for approximately 13 years. The specific contention is that were the Applicant to be released back into the Australian community, he will be at a low risk of re-offending because “he will be the subject of strict supervision by Community Corrections.” The relevant Pre‑Release Report contains the following supervision plan:
“Supervision plan
Should [the Applicant] remain in Australia, the following factors have been identified:
Associates: monitor associates through third party checks and contact with Police, referral to Uplift Psychological or Wentworth Forensic Clinic for counselling around decision making and consequential thinking.
Drugs: referral to Waverly Drug and Alcohol Service or Wentworth Forensic Clinic for assessment and counselling
Practice Guide for Intervention modules focused on managing cravings, managing environment, achieving goals, managing impulsivity, self‑awareness, problem solving and pro-social lifestyle.
Recommended additional conditions
Should a Parole Order be made, it is respectfully requested that it contain conditions concerning non-association with co-offenders, as well as adhering to the supervision of Community Corrections should he remain in Australia.”[54]
[54]     Ibid, G37, page 659.
(13)it is further contended on behalf of the Applicant that his risk of re-offending is tempered by him being the subject of extensive parole conditions. The Applicant’s Parole Order is dated 25 September 2019 and was countersigned and accepted by the Applicant two days later on 27 September 2019.[55] The complete terms of this Parole Order appear in the material. Suffice it to say that it requires the Applicant to be of good behaviour and not violate any law and to not leave Australia for the duration of the parole period, unless with permission duly issued by the Commonwealth Attorney-General’s Department. Item 3 of the Parole Order stipulates the specific conditions applicable to the Applicant. There are 13 specific conditions. For the purposes of brevity, I will refer to certain of those conditions:
[55]     Ibid, G42, pages 672-673.
“…
b) You will be supervised by a parole officer until your supervision period ends on 12 July 2027.
…
d) You must report to your parole officer as requested by him or her.
e) You must live in a place of which your parole officer approves…
f) Your employment, both paid and unpaid, must be approved by your parole officer…
g) You must not leave the state of New South Wales, without first obtaining the written permission…
h) You must not leave Australia without first obtaining the written permission…
…
k) You must be assessed for drug counselling, and you must attend drug counselling if it is recommended as a result of the assessment…
…
m) You must not contact, communicate or associate with your co-offenders, without the express prior approval of your parole officer.
Although you are being released on parole, you are still under sentence. If you commit an offence or breach any of the conditions of this parole order, it may be revoked and you may be returned to prison.”[56]
(14)the immediately preceding contention about the supervision plan and the Parole Order segues into the further contention made about the Applicant’s risk of re-offending, that is, that if the Applicant’s migration/visa status is restored to him, and if he were to engage in future criminality, “there is a real prospect that he will be the subject of future visa cancellation, detained in immigration detention, and ultimately deported from Australia.” In that event, the Applicant would be confronted with exactly the same issues as those with which he is confronted now. I think the contention is fairly made that “the prospect of future visa cancellation and the adverse experiences the applicant has faced in the current immigration context will act as a significant deterrent against the applicant engaging in future criminality.”
[56]     Ibid.

As I understood these contentions put on behalf of the Applicant, it is consequently contended that the Applicant’s risk of re-offending is of a sufficiently low level such as not to be unacceptable to the Australian community. It is contended that although this second component of Primary Consideration A (the risk to the Australian community should the Applicant re‑offend) “weighs against the revocation of the mandatory cancellation decision, it only does so marginally.” [57] Ultimately, with reference to allocable weight to the entirety of this Primary Consideration A, the Applicant says: “it is conceded that the primary consideration of protection of the Australian community weighs against revocation.”[58]
The Applicant’s evidence in chief
[57] Exhibit A1, Applicant’s SFIC, page 57, paragraph [157].
[58] Ibid, paragraph [158].
While a Spanish interpreter was available for the entirety of the Applicant’s evidence (in chief, cross-examination and in reply) he elected to give his evidence in English without the intervention of the interpreter. Perhaps some of the import of the following evidence of the Applicant given in chief in response to the specific question about his risk of recidivism may not be immediately apparent due to certain linguistic reasons. The essence of what he sought to put across in his evidence in chief regarding his risk of recidivism is, to my mind, sufficiently clear from the following passage of the Transcript:
“DR DONNELLY: Yes. The tribunal has to make a determination about whether you will reoffend. Right? And whether you’ll commit another offence, similar to or the same as your offence in the past. What do you want to say about that topic to the tribunal?
…
WITNESS: I can say - I can say - yes, I can say to the tribunal, to the Member and to the Australian community, I’m very, very sorry from the more deep of my heart for (indistinct) whatever (indistinct). I lose, I lose 13 years of my life with my daughters. I know I done something, something wrong, terrible. I say to the tribunal and I say to Australia, give me a second chance. I want - I want show to Australian community I am better person and a good man and I want living. And I want living under the law, of Australian law and Australian community and I can show you, you, and I’m 52 - I’m nearly 53-years-old person, I lose 13 years in jail. I don’t want to go back to jail.
I don’t want see my daughters, my family, (indistinct) again (indistinct). I don’t my daughters feeling the shame, my wife feeling the shame forever, because whatever (indistinct). I had to living with this shame in myself because I done something wrong 13 years ago. I don’t want that come back. I don’t want do anything wrong. I want show you to my daughters how beautiful is Australia and how good is Australia. I want show you to my daughters, they can be a very, very, very good womans in the future. They can finish his school, they can finish university. I want show you to Australia, I’m a good man and a good thinker.
And I want (indistinct) to the community for (indistinct) I want to go there. I give you counsel, I say, “Whatever you done is wrong”. Whatever you done is wrong (indistinct). Is many, many good things to do. You have the choice to do very good things. Unfortunately, 13 years ago, I done wrong choice. I don’t want people - I don’t want people pass for the same happen to me. I want people be honest, becoming a good person, becoming good Samaritans in this country. I want show you to Australia (indistinct) 13 years I’m working hard, I’m study hard, to becoming a good member, to becoming a good person, to becoming a person with good things.
A person with good morals. A person with good heart. A person can carry loving (indistinct) people. I show you to - I would show you to Australia, I want working and working hard. Helping the communities, do all, all, all, all I can do to everybody do the right thing.”[59]
[My underlining]
The Applicant’s evidence in cross-examination
[59] Transcript, 31 August 2020, page 22, lines 36-39, and page 23, lines 1-35.
The Applicant was asked about the circumstances of his offending, specifically, his contention about committing the offences due to his innocence and naïveté about the illegal enterprise in which he involved himself and due to his contended trust that he placed in his co-conspirators:
“MS SAUNDERS: Yes, I can ask you again. You previously stated that you were innocent and merely were just naïve for having trusted your co-conspirator. Is this still correct?
WITNESS: Yes.
MS SAUNDERS: Yes. So you still say that you are innocent and you weren’t involved in the crime.
WITNESS: (Indistinct). And I make my crime.
MS SAUNDERS: What you’re saying is that you did know what you were doing at the time and you were aware of the conspiracy to possess the Cocaine, is that right?
WITNESS: Yes.”[60]
[60] Ibid, page 25, lines 20-35.
The Applicant was then taken to the time of his commission of the subject extremely serious offence. It was put to him that, despite his current contention that he would be dissuaded from committing any further offence because of his intention to protect the integrity of his family unit, he still committed the extremely serious offence while that family unit was nevertheless around him. This is what transpired in cross-examination:
“MS SAUNDERS: …I understand that at the time of your offending you were working full-time and living at home with your wife and children. Is that right?
WITNESS: Yes, I was.
MS SAUNDERS: Would you agree that there’s nothing in the evidence that’s before the tribunal which suggests that there was a trigger to your offending?
WITNESS: That’s a trigger to what?
MS SAUNDERS: To your offending? So - - -
WITNESS: Look, this is 13 years ago, I say to before. Maybe I’m selfish - yes, selfish, I’m greedy. Thirteen years ago, I’m thinking total different yes.
MS SAUNDERS: Would you say that you think the reason for your offending then was that you were greedy?
WITNESS: Yes, I believe.
MS SAUNDERS: You said in your evidence and again today, that you are a changed man and so, can you explain to me what has changed?
WITNESS: In everything. I’m not greedy person. I’m a common, normal person. A person, I have no character, a person that have better decision, a person who can look everything around, can thinking inside of the box and outside of the box. A person who can look more far away from (indistinct). Work (indistinct) he can have in the future. A person and understand. Greedy, not (indistinct) to you to (indistinct). Selfish not been to you, no way. A person, one, show it to my daughters and my family want to go start all the good things we have.
MS SAUNDERS: Noting that before when you did offend you had your wife and you had your children, how could the tribunal be satisfied that it would be different now?
WITNESS: All right. Now, Ms Saunders, when you go to a place that you cannot even have access to a (indistinct), you cannot even have access to a (indistinct), you cannot even have access to many, many, many things, you start thinking inside all these stuff outside because of you greedy, you forgot living there. I’m so happy just walking around to the park. I’m so happy just go, sit down and have a coffee and look the people. I’m happy (indistinct). I’m happy with my life, with the God-life he give me. I’m happy with all this small good thing that God can give to you. Nothing about material. I’m not a person material and I total different person.”[61]
The evidence of Witness LB
[61] Ibid, page 27, lines 33-45, and page 28, lines 1-33.
Witness LB has known the Applicant since December 2010 and describes him as “a good friend” in her written Statement.[62] Witness LB is clearly an entrepreneurial and self-made woman. She runs a successful immigration business, a car detailing business and a real estate business. According to her oral evidence, she specialises in businesses with turnovers of $4 million and less, which she “pump them up; so I build them up and sell them off.”[63]
[62] Exhibit A6, dated 27 July 2020.
[63] Transcript, 31 August 2020, page 66, lines 32.
Witness LB is very appreciative for the emotional and other assistance provided by the Applicant to her brother during her brother’s time in criminal custody. In her statement, she said:
“15. Given the significant emotional assistance [the Applicant] provided to my brother in prison, in conjunction with the development of our friendship, I have decided to offer [the Applicant] secure employment in my business. The broad terms of that employment offer are as follows:
• Administrative assistant role.
• Salary package of $80,000 per year (plus superannuation).
• Forty hours per week of work, with the prospect of overtime and additional monies being earned.
• The location of work is at [address of business redacted].
16. [The Applicant] will be assisting with photocopying and scanning documents, answering phone calls, reviewing correspondence, general processing of enquiries, and undertaking other miscellaneous work at my direction. I am determined to assist [the Applicant] to start his life again in the Australian community.
17. I have gotten to know [the Applicant] quite well over the years, and have complete trust in him. Furthermore, I know that my brother appreciates the assistance I am providing to [the Applicant]. Ultimately, however, the decision to offer [the Applicant] full-time paid employment has been made by me. I see potential in [the Applicant], and I know that he will be a good employee.”[64]
[64] Exhibit A6, page 3.
Although Witness LB’s evidence was not the subject of cross-examination, I again refer to the above-quoted portion of the Applicant’s evidence in cross-examination, where it was put to him that even when (1) he did have stable employment (or when he was operating his air conditioning business) while (2) living at home with his family, those specific factors did not prevent his commission of the extremely serious offence. While Witness LB’s evidence was well-intended, I am of the view that very limited weight can be allocated to it in terms of its capacity to directly or indirectly ameliorate the Applicant’s risk of recidivism.
Findings about the Applicant’s risk of recidivism
My general impression of the evidence regarding the risk of recidivism is that neither the Applicant, nor any expert, has identified any specific triggers for the Applicant’s offending. The Applicant’s lay evidence is that his very lengthy term in criminal custody has served to rehabilitate him from whatever previously predisposed him to offend and has otherwise deterred him from further offending. The expert’s evidence (Dr Cantali) seemed disposed more towards excluding possible or identifiable triggers behind the Applicant’s offending, rather than identifying them.
The highest point reached by the evidence in terms of identifying any factor behind the offending involved a concession on behalf of the Applicant that his offending was motivated by greed and selfishness. The now-contended protective factors apparently militating against any further offending, such as his devotion to his family and his responsibilities towards legitimate employment (as now offered to the Applicant by Witness LB), were both present in his life at the time he committed the extremely serious offence. When he offended in 2007, his stepdaughter was aged around seven years, and his biological daughter was aged three years. He had been in a loving domestic relationship with his wife for the best part of a decade. Yet he still contrived to take an extraordinary, dangerous and potentially irreparable or fatal (in terms of his family unit and his migration status in this country) decision to participate in a criminal conspiracy involving him taking a leading role in the unlawful importation of $35 million worth of cocaine into Australia.
I have had regard to the lengthy, detailed and extensive SFIC filed on behalf of the Applicant, with particular reference to the specific items raised in support of the principal contention that the Applicant is at a low risk of re-offending. I have sought to comment upon each of the factors raised on behalf of the Applicant, and, with the exception of two contended items, each of the remaining contended items should be discounted or disregarded on the following bases. First, any measured level of risk (LSI-R) was conducted a decade ago in 2009/2010. Second, the Applicant’s own evidence comprises the sole basis upon which a low level of recidivism is contended. Third, the expert’s report from Dr Cantali makes broad statements about the Applicant’s risk of recidivism, but, to my mind, those findings are not conclusively supported by adequate psychometric testing. In any event, Dr Cantali was not called to give oral evidence at the hearing, thus denying the Respondent the chance to test her evidence in cross-examination.
Fourth, items such as (1) the lengthy period of time since commission of the extremely serious offence; (2) the Applicant’s claimed deterrence from offending; (3) the claimed positive effects he has experienced from educational and other rehabilitative courses he has undertaken while incarcerated; (4) his positive record of employment while in prison and (5) the various Case Note Reports purportedly demonstrating that “he is a changed man”, are all aspects of the evidence that have occurred in the closed, structured and isolated confines of criminal custody, and are yet to be tested in the broader Australian community.
Perhaps the two factors militating most strongly in favour of a finding of a low risk of recidivism in this Applicant derive from the abovementioned “Post-Release Plan” and “Supervision Plan” appearing in the Pre-Release Report dated 26 March 2019. The former plan makes clear that the Applicant will be safely received and accommodated by his family at the family home in suburban Sydney. The latter plan refers to arrangements for the independent supervision of the nature of his associations with third parties, any risk of him commencing a pattern of abusing illicit drugs and/or alcohol, as well as offering him guidance for intervention modules aimed at managing his impulsivity and raising his self‑awareness against re-committing this type of extremely serious offence.
A further factor that militates in favour of a finding of a low risk of recidivism is to be found in the stark reality of a notional, but nevertheless very real, “Sword of Damocles” positioned above the Applicant’s head, deriving from (1) parole reporting and compliance conditions to which he will be subject until 2027, breach of which could very well likely see him returned to criminal custody, and (2) that any future offending would very likely result in a future mandatory cancellation of his visa status to remain in this country.
Counterbalancing these two favourable militative factors in favour of a low risk of re‑offending are the comments appearing in the abovementioned Pre-Release Report. As will be recalled, this particular report dates from 26 March 2019. It is, to my mind, concerning to note that the author of this report noted that the Applicant “continues to deny any knowledge of his offending behaviour” and that he “accepted responsibility for his actions despite claiming his innocence” and, further, that “he was unable to explore alternative actions.” It is likewise difficult to glean any measure of convincing insight in the Applicant’s disposition which, in itself, is somewhat extraordinary given that he has had over 12 years to develop such insight. As noted by the writer of this particular report (as recently as March 2019):
“…[The Applicant] admitted that at some point he became suspicious of the package being illegal, however; “didn’t think it was what it was or the quantity”. He consistently minimised his offending behaviours stating that he “always helps others”.
Despite his failure to display insight into his offending behaviours and decision making…
…During interviews he appeared to attempt to shift the blame to his co-offenders, consistently protesting his innocence.”[65]
[My underlining]
[65] Exhibit G1, s501 G Documents G37, page 655.
While the Applicant only has the one conviction appearing in his criminal history, that conviction nevertheless involved significant planning, organisation and forethought. His involvement in the unlawful conspiracy was not the result of an impulsive decision. As I recall the evidence, the length of the offending was found to have run over a period of some three months. Consequently, it is difficult to accept that the Applicant was “unaware” of the nature and quantity of the illicit drug at the centre of the criminal conspiracy, particularly when one has regard to the reality that Judge Marien SC sentenced him on, inter alia, the following bases:
·After the removal of co-conspirator S from the enterprise, Judge Marien SC said “The Crown asserted, and I accept on the evidence, that the offender [the Applicant] was to take on the role of the new owner of the container to give the enterprise an air of legitimacy.”;
·“in assessing the nature and circumstances of an offence of this kind, it is relevant to take into account the amount of drug involved. In this case, the amount was substantial being more than fourteen times the commercial quantity.”;
·“Further, I am satisfied beyond reasonable doubt that the accused knew that it was a substantial quantity.”
One also has misgivings about the Applicant’s level of rehabilitation or insight into the need for ongoing intervention to minimise his risk of re-offending. The author of the abovementioned Pre-Release Report noted the following:
“Responsivity
Willingness to undertake intervention
[The Applicant] reported that he would be willing to undertake intervention deemed necessary by Community Corrections.
He was unable to indicate any interventions he believes he would need to engage in, suggesting that he could mentor others. He reported that he did not believe counselling necessary.”[66]
[66] Ibid, G38, page 656.
I am mindful of the terms of the Principles contained in the Direction. Principle 6.3(2) provides that the Australian community has an expectation that the Australian Government should cancel the visas of persons who are involved in serious crimes. It is clear that the nature of this Applicant’s extremely serious offending, without question, falls within the ambit of this Principle. I am also mindful of the terms of the Principle appearing at 6.3(4), namely, that, were this Applicant to repeat the nature of his past offending, the harm it would cause would be so serious that any risk of such conduct in the future would be unacceptable to the Australian community.
The Applicant arrived in Australia in 1997 aged 29 years. While his offending history is short in its length, I have found that his offending has been extremely serious. The severity and seriousness of the Applicant’s offending conduct is reflected in the 20 year head custodial term (with a 12 year non-parole period) imposed upon the Applicant for his singular offence in this country.
I have had regard to the totality of the evidence in relation to the Applicant’s risk of re‑offending. I have reached the conclusion that his risk of re-offending upon any return to the Australian community remains undefined and uncertain. Consequently, I am of the view that the risk of this Applicant again being lured into the commission of similar or identical offending is now no different – specifically, no higher and no lower - than what it was at the time of his removal from the community in mid-2007.
I accept that he has a favourable record in both criminal custody and immigration detention. I also accept that he has completed certain rehabilitative courses and/or treatments while removed from the Australian community. However, the critical observation for present purposes is that any favourable record of conduct and/or seeking out and obtaining rehabilitative courses and treatment has occurred outside the community. One’s time in criminal custody/immigration detention must, by its very nature, be very highly structured and extremely regulated. The Applicant’s capacity to deal with stricture or exigency in his life that has previously predisposed him to offend has only been tested within the closed confines of criminal custody/immigration detention. It remains untested and unproven in the broader community.

In her evidence in chief, the Applicant’s wife was asked about the current state of her relationship with the Applicant. I found this evidence to be both genuine and convincing, and do not consider that any aspect of the cross-examination casts doubt upon it:
“DR DONNELLY: And what is your relationship to [the Applicant]?
WITNESS: I’m his wife.
DR DONNELLY: How long have you been married for?
WITNESS: Since 2004.
DR DONNELLY: And when did you first enter into a relationship with [the Applicant]?
WITNESS: Would have been 2000, maybe, just before.
DR DONNELLY: Okay. At the present moment, how would you describe your relationship with [the Applicant]?
WITNESS: It’s good. We co-parent the girls still. I speak to [the Applicant] every day on a daily basis. Telephone calls, texting, we’re always in communication throughout the day. I love [the Applicant], and we’ve always functioned as a couple, pretty much, and as a family.
DR DONNELLY: And you’re obviously aware that [the Applicant] spent 12 years in prison?
WITNESS: Of course, it’s been really hard to manage to keep the relationship solid throughout that.
DR DONNELLY: Can I ask you, have you seen [the Applicant] while he’s been in prison?
WITNESS: Yes, yes, we have. We visited him during his incarceration. We visited him at the detention centre also, and have kept in constant contact throughout the years.
DR DONNELLY: If you were to describe your relationship with [the Applicant] in three words, how would you describe it?
WITNESS: Loving, very honest, and just [the Applicant] is a good man. He’s just – it’s a good relationship.”[127]
[My underlining]
[127] Transcript, 31 August 2020, page 52, lines 21-43.
The Applicant’s wife also gave evidence about the Applicant providing emotional and mentoring-type support to the family, particularly the children, during his enforced period of physical absence from the family unit. Her evidence was very frank in the sense that she acknowledged that she had “fallback” support from her family that she could “lean on”, but she still spoke of the critically important role the Applicant has played over approximately the last decade and in terms of the role he would play were he returned to that family unit:
“DR DONNELLY: Now I’m sorry to ask you this next series of questions. They might seem like stupid questions, but they’re important. If [the Applicant] was to be deported to Colombia, first of all, how would that make you feel?
WITNESS: [The Applicant] has been a very strong moral support for me, for the girls. During his incarceration, it’s been quite hard for me to bring them up to the point where they are, and simply with those types of setbacks, [Child K] with her anxiety and [Child L] struggling a little bit through school, I found it very hard. I mean I do have family that I can lean on, but it’s not the same as a partner that is with you all the time and can help you when things happen at the moment. We miss [the Applicant] a lot. He was a very – he still is a very good father, a very good person. If he were to be deported, it would be just horribly sad for us. It’s basically the end of our family. And it would really – my financial struggle would continue, with raising the girls, and I really would love to – you know, for [Child L] to go to uni and be able to support her and – in everything that she wants to do. Since she’s doing so well, and I feel like she could really go far, and [the Applicant] would be a very big support for that.
DR DONNELLY: You mentioned – sorry, go on. Sorry, I apologise?
WITNESS: And definitely [Child K] as well, obviously, since [Child K] has had those setbacks as well that, you know, they need – they need him, and I need him.”[128]
[My underlining]
[128] Ibid, page 54, lines 13-32.
The Applicant’s wife was asked about where the Applicant would physically return and reside were he to be permitted to remain in Australia. The answer was clear, unequivocal and not at all indicative of any suggestion that the relationship between him and her is not current:
“DR DONNELLY: Thank you, and on the flipside, if [the Applicant] was able to stay in Australia, have you discussed accommodation, where he might live?
WITNESS: Where he might ‑ ‑ ‑
DR DONNELLY: Live, where [the Applicant] might live?
WITNESS: Where he might live.
DR DONNELLY: Yes?
WITNESS: Yes, definitely with us.
DR DONNELLY: When you say “with us”, could you describe where that is, and who lives in the place?
WITNESS: Yes, [address redacted][129], myself and my daughters. He would be reunited with the family.”[130]
[My underlining]
[129] To be clear, this redacted address is the same address in suburban Sydney that has comprised the family home throughout the relationship between the Applicant and his wife, including the time he has spent in criminal custody/immigration detention.
[130] Transcript, 31 August 2020, page 55, lines 1-10.
With specific reference to this paragraph 14.2(1)(b), I find that the strength, nature and duration of the Applicant’s relationships with each of his wife, Child K and Child L are very strong and palpable. He is the only father that Child K and Child L have known for all of their lives. He has been the partner/husband of his now-wife on a continuous basis since around 1999/2000. I specifically find that, were he to be released back into the Australian community, he would return to the family home in suburban Sydney, where the family unit has always been located. With specific reference to his connection with the three immediate members of his family unit, I find that this paragraph 14.2(1)(b) weighs strongly in favour of a finding to restore the Applicant’s visa status to remain in Australia.
Further, I find that the Applicant has significant ties to other members of the Australian community pursuant to this paragraph 14.2(1)(b). Those relationships are historical, very often having their genesis prior to the Applicant’s incarceration. For example, there is evidence from lay witnesses that the Applicant has assisted people with their university entrance exams,[131] assisted people with providing employment opportunities[132] and has impressed on both regular citizens and a community leader his feelings of ongoing love and support for his immediate family unit and extended family.[133]
[131]    Exhibit G1, s501 G Documents, G29, page 560, Statutory Declaration of Witness RP dated 10 October 2018.
[132]    Ibid, page 563, Statutory Declaration of Witness RO, dated 19 October 2018; see also page 562, Statutory Declaration of Witness DM, made on 16 October 2018.
[133]    Ibid, See Statutory Declaration of Witness JY, dated 19 October 2018, page 564; see also Statutory Declaration of Witness KY, dated 22 October 2018, page 565; and see also G30, Letter of Support from Reverend SK, dated 28 September 2018, pages 566-567.
I have checked the Applicant’s Personal Circumstances Form, and in terms of extended family, he has only inserted the names of his parents in that form, both of whom reside in Colombia.[134] I have had regard to the strength, duration and nature of ties between the Applicant and (1) the three members of his immediate family unit in Australia; (2) his social contacts/colleagues/friends in Australia; and (3) his extended family in Australia (i.e. that of the Applicant’s wife). Given the significant level of the nature, strength and duration of the Applicant’s family/social links with the people in these three categories, I find that a strong measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
[134] Ibid, G13, page 114. Note: Child K is recorded by the Applicant on this particular page of his Personal Circumstances Form. I have discussed the Applicant’s ties with Child K in earlier paragraphs of this discussion relating to paragraph 14.2(1) of the Direction.
Accordingly, having regard to the totality of evidence relevant to this Other Consideration (b), I am of the view that it weighs strongly in favour of revocation, but is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
188.In his SFIC, the Applicant makes the following concession:
“216. Clause 14.3 is inapplicable in this case. There is no material evidence that demonstrates that non-revocation of the mandatory cancellation decision would significantly compromise the delivery of a major project or delivery of important service in Australia.”[135]
[135] Exhibit A1, Applicant’s SFIC, page 68.
Accordingly, there is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
190.In his SFIC, the Applicant again makes the following concession:
“217. Clause 14.4(1) is inapplicable in this case. Given the circumstances of the conspiracy offence, no drugs were made or otherwise distributed unlawfully into the Australian community. Thankfully, in that context, there are no actual victims of the applicant’s criminality associated with the conspiracy offence.”[136]
[136] Ibid, page 69.
I find that there is no evidence before the Tribunal that the Applicant’s remaining in Australia would have on any victims. This consideration is not relevant to determination of this application.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The material contains a Personal Circumstances Form dated 4 October 2018.[137] The Applicant is a man of 52 years of age. In response to a question about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “No” box in his Personal Circumstances Form.[138] Further, he does not mention that he takes any medication for any condition, or that he is currently being treated by any doctor/health professional/counsellor.[139]
[137]    Exhibit G1, s501 G Documents, G13, pages 108-118 (excluding attachments).
[138]    Ibid, page 117; see also Section 14.5(1)(a) of the Direction.
[139]    Ibid.
In his written Statement,[140] the Applicant refers to the following issue with his left knee and other orthopaedic issues:
[140] See Exhibit A2.
“14. On 2 July 2020, I did an ultrasound on my left knee. Annexed hereto and marked ‘A’ is a copy of the ultrasound from the I-MED Radiology Network, 2 July 2020. The report of the ultrasound shows:
• Mild changes of the distal quadriceps.
• Effusion at the suprapatellar recess.
• Heterogeneous appearance of the MCL with associated hyperaemia.
15. I have been having a lot of pain and swelling in the proximity of my left knee. I am still not sure what is the cause of the problem with my knee. Regardless, it has been annoying and painful. I have received limited treatment for this issue while in immigration detention.”[141]
[141] Ibid, page 4.
The Respondent (in its SFIC) goes so far as to suggest that “In the absence of any explanation of the ultrasound nor any diagnosis resulting from this imaging[142]… the applicant has a sprain which is an injury…unlikely to require ongoing medical treatment.”[143] I will make no definitive finding on whether this injury asserted by the Applicant will heal itself or whether further treatment is required. Suffice it to say, that to the extent the Applicant will require access to medical services for these issues in Colombia, there is nothing to suggest that he will not have access to those services to the same level as is generally available to other citizens of that country.
[142] The Annexure A referred to in the Applicant’s Statement, the relevant portion of which is quoted in the immediately preceding paragraph refers to a radiologist’s report dated 2 July 2020, reporting on “ultrasound left knee” of the Applicant.
[143] Exhibit R1, Respondent’s SFIC, page 8, paragraph [43].
In his SFIC, the Applicant says that his mother, siblings and extended family reside in Colombia. The contention runs along the lines that, while there is some evidence that the Applicant’s extended family would provide him with a level of emotional and practical support in Colombia, this evidence must now be tempered by the advent of the COVID-19 pandemic and its impact on Colombia. Stated shortly, the Applicant’s evidence at the hearing was that the pandemic has adversely affected both the nation of Colombia and the capacity of the Applicant’s family to receive and accommodate him. In cross-examination, the Applicant said the following:
“MS SAUNDERS…I understand you have your mother there and some siblings, is that right?
WITNESS: Yes, it’s right.
MS SAUNDERS: And I understand that if you’re returned to Colombia you would be able to stay with your family in Bogota, is that right?
WITNESS: What can I say? Is – yes because on the family, the Colombian family or Latin family, yes, the (indistinct words).
MS SAUNDERS: Yes. Okay
WITNESS: They have one house and they living 20 people there. Everybody live there. The condition of the living is total different, yes? I understand – I understand, they understand. My family is not have economic (indistinct). My family is very poor. And this knowing, with this pandemic, the limitation is – is very big. We say before here, we - - -
MS SAUNDERS: If I could just ask – sorry. If I could just ask what work does your family do? I think you were saying that your sister’s no longer working, is that what you said before?
WITNESS: Yes. Yes.
MS SAUNDERS: And are your other family members working?
WITNESS: My mother, she’s 75 years old, she’s not working. Yes? My mother sister, she’s (indistinct words) she’s not working, yes? So my – they – I know they living with – like, with the money they give you Centrelink, like in Colombia, yes? Is very limit amount, yes? And if I go to Colombia, I no (indistinct) to nothing.
MS SAUNDERS: Yes, I saw that in your statement. So I ‑ ‑ ‑
WITNESS: So – so this is ‑ ‑ ‑
MS SAUNDERS: Sorry, you go ahead?
WITNESS: If you understand, if you read a (indistinct), my family at this moment – they’re just poor. They no have money, yes? They trying just only living with – with nothing, yes? They’re trying to – to helping each other, how we can go out, yes?
MS SAUNDERS: So I understand that one of your uncles owns a coffee farm. Is that right?
WITNESS: It’s my uncle, is own one of the coffee farms. He offered me job before, but we go back the same situation. We have the pandemic. The farm is not work at the moment. Yet my uncle, we say the same situation. My uncle have his own family too, yes? They – they – whatever, they marking, or whatever they are, is very limit. It’s living nothing.
MS SAUNDERS: Sorry, it just broke up a little bit, so I just wanted to check what you were saying. So you’re saying the farm is not working at the moment?
WITNESS: The farm at this moment is not working at the moment because you know the program of the coffee nothing. People cannot do nothing, yes? Their farm is a small farm of the coffee – of the coffee, sorry, of the coffee, and the – and the situation of the coffee is not the best at the moment, yes. So my uncle have his own family too. My uncle is forever, they trying to do – trying to survive it with his own family. So the opportunity, a job for me working with my uncle, it’s nil, it’s gone, because pandemic, because of many things?”[144]
[144] Transcript, 31 August 2020, page 47, lines 1-46, and page 48, lines 1-18.
I accept that the Applicant will have family to stay with upon his return to Colombia, but that such lodgings may be cramped or to an extent, overcrowded. I similarly accept that most, if not all of his family, are not doing well financially and may not be able to readily support him in a financial sense. I further accept that his uncle’s coffee farm has been adversely affected by the global economic downturn resulting from the pandemic. Be that as it may, upon a return to Colombia, the Applicant nevertheless has (1) somewhere to stay; (2) the emotional support of family members around him; and (3) an uncle with a coffee farm that could reasonably be expected to improve (in terms of economic viability) as the pandemic continues to be gradually brought under control.
I accept he may face some short to medium term difficulties in re-establishing himself in Colombia. As against that, the Applicant has extended family in Colombia and an extensive and successful work and education/training history in Australia. There is nothing to suggest that he will not take this ethic and his work experience with him to Colombia. Taking these factors in total, I do not consider those short to medium term difficulties, while genuine, would be insurmountable. While I accept the vagaries and exigencies of Colombia’s social security system, as a citizen of that country, he will have access to social, medical and/or economic support in the context of what is generally available to other citizens of Colombia.[145]
[145] Paragraph 14.5(1)(c) of the Direction.
While the impact of the COVID-19 pandemic upon Colombia is propounded on behalf of the Applicant, I am of the view that the relative approach taken by the Respondent is a more realistic and reliable one for present purposes:
“44. In respect of the impact of COVID-19 in Colombia, the Minister notes that as of 11 August 2020 there were approximately 160,000 active cases, with almost 300,000 people having been infected to date. The Minister accepts that COVID-19 has had a significant impact on Colombia; however, this impact is being felt by all citizens of Colombia and is not something that will impact the applicant differently to the other citizens of Colombia. Accordingly, the Minister contends that little weight should be afforded to considerations of COVID-19 as it relates to potential impediments to the applicant if removed.”[146]
[146] Exhibit R1, Respondent’s SFIC, page 8.
The Applicant arrived in Australia from Colombia aged 29 years. The Applicant contends that “There are no substantial language barriers, although the applicant has indicated that he does not speak very fluent Spanish anymore.”[147] That contention should be received with caution, for two reasons. First, I do not accept that the Applicant is no longer fluent in Spanish, because “he has been forced to speak English during the entirety of his prison sentence and time in immigration detention (which is a substantial period).”[148] Second, he requested (and was provided) a Spanish interpreter for the totality of the hearing.[149] Accordingly, my finding is that there are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in Colombia.[150]
[147] Exhibit A1, Applicant’s SFIC, page 69, paragraph [219].
[148] Ibid.
[149] See paragraph [77] of these Reasons.
[150] Paragraph 14.5(1)(b) of the Direction.
As stated, the Applicant has a strong record of engaging in remunerative employment in this country. There is little or nothing precluding him from doing the same type of work in Colombia, as that which he has done in Australia in the past, were he compelled to return there. Having regard to the totality of the evidence relevant to this Other Consideration (e), I am thus of the view it, at best, weighs moderately in favour of revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which respectively weigh very heavily in favour of non‑revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: of neutral weight;
·strength nature and duration of ties: strongly weighs in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: not relevant; and
·extent of impediments if removed: moderately weighs in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?

Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs very heavily in favour of non-revocation;
·Primary Consideration B weighs strongly in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations (b) and (e) combined, even when conjoined with Primary Consideration B, outweigh the very significant, combined and determinative weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non‑revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 206 (two hundred and six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Tavoularis

................................[SGD]........................................
Associate
Dated: 14 September 2020

Date of hearing: 31 August 2020

Advocate for the Applicant:

Dr J Donnelly of Counsel

Advocate for the Respondent: Ms C Saunders, Senior Associate

Solicitors for the Respondent: Minter Ellison Lawyers
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents
(4 Volumes, G1-70, paged 1 - 2287)

R

-

14.07.2020

R1

Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 8)

R

14.08.2020

14.08.2020

R2

Respondent’s Supplementary Documents (S1-S2, paged 1 – 67)

R

-

27.08.2020

A1

Applicant’s Statement of Facts, Issues and Contentions (pages 1-75)

A

28.07.2020

29.07.2020

A2

Witness Statement: The Applicant

A

27.07.2020

29.07.2020

A3

Witness Statement: The Applicant’s Wife

A

27.07.2020

29.07.2020

A4

Witness Statement: Child K

A

28.07.2020

29.07.2020

A5

Witness Statement: Child L

A

28.07.2020

29.07.2020

A6

Witness Statement: Witness LB

A

27.07.2020

29.07.2020

[2020] AATA 3529

14 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Date of hearing:	31 August 2020
Advocate for the Applicant:	Dr J Donnelly of Counsel
Advocate for the Respondent:	Ms C Saunders, Senior Associate
Solicitors for the Respondent:	Minter Ellison Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (4 Volumes, G1-70, paged 1 - 2287)	R	-	14.07.2020
R1	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 8)	R	14.08.2020	14.08.2020
R2	Respondent’s Supplementary Documents (S1-S2, paged 1 – 67)	R	-	27.08.2020
A1	Applicant’s Statement of Facts, Issues and Contentions (pages 1-75)	A	28.07.2020	29.07.2020
A2	Witness Statement: The Applicant	A	27.07.2020	29.07.2020
A3	Witness Statement: The Applicant’s Wife	A	27.07.2020	29.07.2020
A4	Witness Statement: Child K	A	28.07.2020	29.07.2020
A5	Witness Statement: Child L	A	28.07.2020	29.07.2020
A6	Witness Statement: Witness LB	A	27.07.2020	29.07.2020