Palmer and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 2159

Palmer and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2159 (21 July 2023)
Division:GENERAL DIVISION
File Number(s): 2022/8387
Re:Kotahi Rangivaru Bob Palmer
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member D. Cosgrave
Date:21 July 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.
........................................................................
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory visa cancellation – New Zealand citizen – Class TY – Sub Class 444 – Class XB Subclass 200 refugee visa – failure to pass good character test – criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – delegate’s decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member D. Cosgrave
21 July 2023
INTRODUCTION

Mr Palmer seeks review of the Respondent’s delegate’s 13 September 2022 decision not to revoke the mandatory cancellation of his Special Category (Temporary) (Class TY) (Sub Class 444) visa (the visa).[1]
[1] G documents, G4, page 15. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
The hearing was held by video from the Tribunal’s Brisbane Registry on 28 March 2023. Mr McComber of Sentry Law represented Mr Palmer. The Respondent was represented by Mr Dennis of MinterEllison.
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Palmer is a 36 year[2] old New Zealand citizen who arrived in Australia on 3 September 2010[3].
[2] G Documents, G13, page 44
[3] G Documents, G13, page 46
On 3 August 2021, a delegate of the Respondent applied s501(3A) of the Migration Act 1958 (Cth) (the Act) provisions[4] and cancelled Mr Palmer’s visa because he had been sentenced to a term of imprisonment of 12 months or more[5] and consequently had a ‘substantial criminal record’.
[4] Applying Subsections 501(3A),(6)(a) and (7) of the Act
[5] Ibid
On 20 August 2021, Mr Palmer made representations to have the cancellation revoked under section 501CA of the Act.[6]
[6] G Documents, G12, page 41
On 11 July 2022, Mr Palmer voluntarily departed Australia and returned to New Zealand.[7]
[7] RSFIC, page 2
On 13 September 2022, pursuant to subsection 501CA(4) of the Act, a delegate of the Respondent refused to revoke the cancellation of Mr Palmer's visa.[8].
[8] G Documents, G4, page 15
On 12 October 2022, Mr Palmer applied to the Administrative Appeals Tribunal for review of the delegate's decision[9].
[9] G Documents, G1, page 1
MR PALMER’S OFFENDING HISTORY
On 19 October 2019, Queensland police arrested Mr Palmer and charged him with:
(a)'Trafficking in dangerous drugs' for which he was sentenced to a period of four years imprisonment with a non-parole period of six months.
(b)one count of 'Possessing dangerous drugs' for which he was sentenced to three months imprisonment;
(c)one count of 'Possessing dangerous drugs' for which he was sentenced to one month imprisonment; and
(d)one count of 'Unlawful possession of suspected stolen property' for which he was not further punished.
Mr Palmer was released on bail from 21 October 2019. He breached his bail conditions on 4 November 2019 and 2 March 2020.
These breaches related to Mr Palmer failing to sign-in as his bail conditions required (on one occasion by an hour, on the other by a day).
Mr Palmer pled guilty to the bail breaches on 12 December 2019 and 6 October 2020.
On 12 July 2021, Mr Palmer pled guilty to the offences he was charged on 19 October 2019 and was convicted and sentenced by the Supreme Court of Queensland.
Mr Palmer also has an extensive set of traffic offences commencing on 6 September 2012 and continuing to 30 June 2019 prior to his conviction and sentencing[10].
[10] Supplementary Tender Bundle, S4, pages 4-5
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and Section 500 of the Act are the relevant sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read with sections 501(6) and 501(7), requires the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test.
The ‘character test’ is defined in section 501(6) of the Act. A person fails the test if they have a ‘substantial criminal record’ defined by section 501(7) of the Act.
Section 501(7)(c) of the Act defines a ‘substantial criminal record’ as including the situation where a person is sentenced to a term of imprisonment of 12 months or more.
Under Section 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation.
Section 501CA(4) of the Act confers a power upon the Minister to revoke the original decision if:
(a)the person whose visa has been cancelled makes representations in accordance with the invitation; and
(b)the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
MATTERS FOR CONSIDERATION
The Issues
Mr Palmer possessed and trafficked illegal drugs. He received a 4-year prison sentence.
Section 501(1) of the Act gives the Minister the power to refuse to grant a visa if an applicant does not pass the character test.
Failing the character test invokes the next test - whether there is ‘another reason’ to revoke the visa refusal.
Whether there is ‘another reason’ here requires consideration of whether Mr Palmer’s ties to Australia and his minor children’s best interests outweigh the remaining considerations.
The character test.
Mr Palmer’s visa was cancelled on the basis that he had failed the character test.
He had been sentenced to a term of imprisonment of more than 12 months and was serving that sentence on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory[11].
[11] G Documents, G6, page 26
The parties agree that Mr Palmer does not pass the character test.[12] This is borne out by Mr Palmer’s criminal history[13] which meets the requirement of a ‘substantial criminal record’ as defined by s 501(7)(c) of the Act.
[12] Exhibit 2, Respondent’s Statement of Facts, Issues & Contentions and Exhibit 4, Applicant’s Statement of Facts, Issues & Contentions
[13] G Documents, G6, page 26
Consequently, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
The Tribunal must consider under Section 501CA(4)(b)(ii) of the Act whether there is ‘another reason’ to revoke the cancellation decision.[14]
[14] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
In doing so, the Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation as at the time of its consideration.[15]
[15] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
Is there another reason why Mr Palmer’s visa cancellation should be revoked?
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, approving the reasoning in Viane,[16] identified the following principles as relevant to the statutory task conferred by Section 501CA(4) at [27]:
1.If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
2.The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
3.The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
4.However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
5.Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
6.If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.…”
[16] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
Section 499(2A) of the Act requires the Tribunal to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) when it assesses and considers the factors weighing for and against setting aside a visa cancellation.[17]
[17] See Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at para [38].
The Direction
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[18]
[18] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles in paragraph 5.2 of the Direction inform the decision-making process:[19]
1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2)    Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5)    With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6)    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
[19] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a

decision-maker must consider the primary and other considerations set out in Paragraphs 8 and 9 of the Direction where relevant to their decision making.
Paragraph 8 of the Direction provides the following primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
Paragraph 7(1) of the Direction provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each case’s specific circumstances[20]. The weighing process is determined by decision-makers exercising the relevant power under the Act[21].
[20] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[21] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
THE EVIDENCE
The following is a summary of the evidence adduced before the Tribunal and which the Tribunal has considered.
The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, documents tendered by the Respondent and the oral testimony given by Mr Palmer.
Documentary evidence
The hearing received documentary evidence. The totality of that evidence is consolidated into an agreed Exhibit List and a true and correct copy of which is attached to this Decision and marked ‘Annexure A’.
Oral Testimony
Mr Palmer was the only witness to give oral testimony in the hearing.
Mr Palmer’s evidence
Relevant aspects of Mr Palmer’s evidence are summarised below:
Examination-in-chief
In response to Mr McComber asking about Mr Palmer’s move to Australia and what happened, Mr Palmer gave the following insight into how he began dealing drugs:
“I lost my way. And it wasn’t good for anyone, especially for my family and the community, and for myself as well. So, to better myself I just do things that will make it that I keep control of circumstance, even though they can be dramatic. So, saying that, that’s when we lost our two pregnancy and my grandmother. So, from 2016, 2017 there were quite dark times. I lost the pregnancy, and then I lost my grandmother, then too my grandfather and my other grandmother. So, grandmother one was mum’s mother, then my grandfather, maternal father. Then my paternal grandmother. And I lost another pregnancy as well in that time, which led me to a little bit of a dark – dark place where I was depressive and it led me to a bad path. And I understand that led to bad decision and I commit a very bad crime. I understand all of that. And all I can do is from now on I’m trying to better myself.”[22]
[22] Transcript, page 12, lines 26 – 38
Cross-examination
Mr Dennis took Mr Palmer through the details of the charges Queensland Police made against him:[23]
[23] Supplementary Tender Bundle, S16, pages 24-27
Mr Dennis: And so what that document does is it basically sets out the factual detail underlying your offences?
Mr Palmer: Yes.
Mr Dennis: Okay. And so about two-thirds of the way down it says: ‘On 14 June 2019 the defendant met law enforcement participants operating under a controlled activity and supplied them one gram of white powder, believed to be cocaine, at the cost of $300’?
Mr Palmer: Yes.
Mr Dennis: Is that what happened?
Mr Palmer: Yes.
Mr Dennis: Okay. And then it says that on 19 July 2019 the same thing happened, ‘one gram of white powder, believed to be cocaine, at the cost of $300’?
Mr Palmer: Yes.
Mr Dennis: And then again on 20 July you supplied, ‘3.5 grams of white powder believed to be cocaine at the cost of $1,050’?
Mr Palmer: Yes.
Mr Dennis: Okay. And on 23 August – once again it was, ‘1 gram of white powder believed to be cocaine at the cost of $300’?
Mr Palmer: Yes.
Mr Dennis: And on 24 August 2019 you supplied, ‘14 grams of a white powder believed to be cocaine at the cost of $3,500’. Is that right?
Mr Palmer: Yes.
Mr Dennis: And then on 19 October – this is just down the bottom of the page – you, ‘agreed to supply 140 grams of cocaine in exchange for $40,000,’ is that right?
Mr Palmer: Yes.
Mr Dennis: And then at about midday on 19 October 2019 you were intercepted in a Toyota Hilux by the police, is that right?
Mr Palmer: Yes.
Mr Dennis: And the police searched your vehicle?
Mr Palmer: Yes.
Mr Dennis: And they found five bags containing white powder believed to be cocaine, and there was 91 grams of cocaine there. Is that right?
Mr Palmer: Yes.
Mr Dennis: And the police found – this is at the top of page 27, in the second paragraph it says: ‘In the defendant’s wallet police located $1,900 suspected of being the proceeds of supply of a dangerous drug’. Is that right?
Mr Palmer: Yes.
Mr Dennis: And just down the page in the fourth paragraph it says: ‘On 19 October 2019 covert police surveillance observed the defendant’s wife meet with another male person out the front of their address. The defendant’s wife handed the male person a distinctive bag, which the male person placed into his vehicle.’ Is that right?
Mr Palmer: Yes.
Mr Dennis: And, ‘Inside the bag the police located nine clip-seal bags containing brown crystalline substance, believed to be methamphetamine.’ And they also found, ‘a liquid believed to be Trenbolone,’ and they also found what was believed to be testosterone.
Mr McComber: Sorry, just to correct something on the record there, MDMA is ecstasy and not methamphetamine.
Mr Dennis: Sorry. Apologies for that.
Tribunal: No, Mr Dennis. It speaks well of your innocence and naivety that you don’t know that.
Mr Dennis: I think I was deceived by the long word before the acronym. Apologies for that. And also inside the bag, Mr Palmer, the police located $26,370. Is that right?‑‑‑All right, so for this part I wasn’t there. So, this is what happened. For the part of they found $26,370, it’s they haven’t found that from what I record, and it wasn’t in the bag that my partner (indistinct) in a different bag.”[24]
[24] Transcript, page 22, line 3 – page 22, line 11

Mr Dennis then questioned Mr Palmer on the origins of his drug taking:
Mr Dennis: Can you just explain to the tribunal about when and how you became involved with cocaine?
Mr Palmer: So, I start being involved with cocaine through parties. Record the date exact, I wouldn’t be able. But my first use – my first use of cocaine was maybe when I was maybe 19. And that was – that was in Tahiti. That’s the first time I used it. That was for a party. Occasionally used it again maybe once a month, not even. I would say once every – well, it was when it there, basically. I wasn’t going out of my way to have it, and if someone comes and says, ‘do you want some?’ I will say, ‘Oh okay, yes’. So that’s how I sort of start using cocaine. Then after that I stopped using it, just because I stopped partying. When I start – especially when I stop being with Melody, I was with her so I wasn’t going out[25].
[25] Transcript, page 25, lines 24-34
Mr Dennis questioned Mr Palmer on his historic attitude to drug use and how it led to drug trafficking:
Mr Dennis: Mr Palmer, we were just talking about your cocaine use. I think you were saying that you first used cocaine when you were 19 years old?
Mr Palmer: Yes. Yes.
Mr Dennis: Then you said that you stopped using cocaine and stopped partying around the time that you met Melody, is that right?
Mr Palmer: Yes. Yes.
Mr Dennis: And when was that?
Mr Palmer: So I met her when I was 20 years old.
Mr Dennis: Yes?
Mr Palmer: And we started a relationship in 2008, on 3 March.
Mr Dennis: Okay?
Mr Palmer: So my drug use prior to that was, I will say it, like, party, occasionally, when someone offers you, sort of, like this. And then, I started the relationship with Melody so I stopped going out basically. I stopped – I stopped all of that.
Mr Dennis: Yes?
Mr Palmer: And I restarted, and that’s where it became a problem. Probably around 2017. So that’s when – after the loss of my grandmother, just after her loss, I start using it a little bit again through parties, through people that offers you and stuff like that. But at the time, party became an evasion – an evasion for me, and sort of, like, trying to get away from my depression really. And through that, I will say that I start using the cocaine more regularly to the point where I had to supply myself. It wasn’t just people giving it to me, I had to supply myself, and that’s when it started to become an addiction. And then, at that point – well, first of all, cocaine is quite an expensive drug so it quickly became an issue in terms of how much it cost, but still, I was able to – to – to support myself with that.
Mr Dennis: Yes?
Mr Palmer: And it really became a problem when I start using, let’s say, about half not half a ball, like a ball, so 3.5 grams of cocaine, that’s when the cost was – was significant, even though we had a little bit of saving, I wasn’t – I couldn’t – I couldn’t then afford it. So and that went to the late 2019, that’s when – that’s when my addiction start to increase, and from that point, the addiction really increased dramatically, I will say it like that. Just because – well, my experience with drugs is, and especially with cocaine, is you are building a habit very quickly, so you are – it was, in my case, the – how it happened. My tolerance to cocaine increased very quickly. So very quickly it was increasing, increasing, and I was going through probably, like, an ounce a week of cocaine. And that – well, that cost – that cost me, so that’s when I had to start trafficking that drug to supply my – my habit, my addiction in a way.
Mr Dennis: And how much would that have cost you, Mr Palmer? An ounce a week?‑‑‑An ounce a week?
Mr Palmer: Roughly 7,000, 6,000, depending on – on the price really. But it was going between that – that (indistinct), between six and 7,000.
Mr Dennis: Okay, and was all that money coming from selling drugs?
Mr Palmer: Yes.
Mr Dennis: Okay, and it says in your statement, as well, that you – well, it refers to your offences of having steroids and MDMA?
Mr Palmer: Yes.
Mr Dennis: Were you taking other drugs at the time as well?
Mr Palmer: Well, the MDMA was on the occasion of a festival that occurred the day I was arrested. So that wasn’t a drug of choice. It was just that me and some friends wanted to have a big party, big festival party. So – well, we planned to have some MDMA and me being in the – in that – how can I say that – like, I was dealing with people that were dealing drugs, so I was the best choice to have the best price for it. So that was – that’s why I had MDMA on that occasion.
Mr Dennis: Okay?
Mr Palmer: But it wasn’t a drug of me trafficking. Steroids, that was me again. I wanted to look better and be bigger, and that’s why I start doing steroids. And that was my first – first cycle. They call it like that. In that, sort of, like bodybuilding world. So yes, I bought it for my personal use, basically to try to look better.
Mr Dennis: Okay, so were you – sorry, just to clarify – were you selling any other drugs?
Mr Palmer: No.
Mr Dennis: Apart from cocaine?
Mr Palmer: Cocaine, no.
Mr Dennis: So they were just for your personal use?
Mr Palmer: Yes.[26]
[26] Transcript, page 27, line 15 – page 28, line 38
Mr Dennis questioned Mr Palmer about his rehabilitation and his views on the risk of his re-offending:
Mr Dennis: Okay, so what is your attitude to your own rehabilitation? Would you say that you are rehabilitated?‑‑‑
Mr Palmer: Yes. Yes, I believe I’m rehabilitated. I believe better than I was. I still believe that there is challenge that I have to go through. So I know that and I know that there will be a lot more challenge in my life, but am I able to go through them? I don’t – I can’t tell you how – how I will be impacted when I go through them, but if I am able to go through this, I can.
Mr Dennis: Okay. I think you said in evidence before that it was easy to fix the issues that you were having when you had taken ownership of what happened in the past, and I think you said, as well, that it’s difficult to prove that there is no risk because you can really only show through your actions. Can you explain what you meant when you said that, you know, that there might always be a risk that you will reoffend?
Mr Palmer: A risk for me to reoffend is – is the fact that I can’t tell you how our future will be exactly. Okay, I don’t – I’m not the sort of person that will tell you – well, I don’t want to lie to you. All I can tell you is I’m working into – into bettering myself and I am working into ownership. So the risk, I will say, is probably 0.000001 per cent, but even if there is – I can’t tell you, yes, 100 per cent I wouldn’t – I won’t – I won’t do it – anything bad again. I’m not saying – because reoffending might be something else, I don’t know. And I believe, in my opinion, saying – someone saying, ‘100 per cent sure I know that I won’t do anything wrong in my life’, is a liar because I don’t know, I don’t know. There’s always – there’s always a chance that something happens. So I will keep that – keep it at 0.00 – you get to the 0.0001 per cent to the – that’s my point. But what I can tell you is I’m working to better myself and being able to tell you that there is – those risk factor means that I have to work to better myself even more, if that makes sense? Because well, I’m not perfect and I will never be perfect, and I’m not claiming that. I’ll never claim those. And that’s – that’s the most important thing, I think, that I need to realise and people have to realise as well, is that you need to keep on working on yourself all the time, otherwise – otherwise if you’re so perfect, there’s for sure, like, that thing will happen, there’s not – there’s no such things.”[27]
THE TRIBUNAL’S ASSESSMENT OF MR PALMER
[27] Transcript, page 34, lines 13-45
The Tribunal found Mr Palmer to demonstrate a degree of honesty and insight in his oral testimony about his drug use, his drug trafficking, his rehabilitation history, and his views on the risk that he will re-offend.[28]
[28] ASFIC [5]
EXPERT EVIDENCE
The Tribunal considers, amongst the other documentary evidence which contains clinical notes and other purported reports and data, that Mr Battley’s 1 July 2021 report[29] as a clinical psychologist about Mr Palmer is the most authoritative expert evidence available in this matter.
[29] G Documents, G17, page 72
Mr Battley’s report appears to have been prepared in relation to Mr Palmer’s conviction and sentencing hearing. The Tribunal draws from the report:
(a)Mr Palmer’s tendency to experience onsets of depressive effect when under stress[30].
(b)Mr Palmer’s fear regarding his inability to support his family financially and emotionally[31].
(c)Mr Palmer’s contemporaneous cessation of substance use[32].
[30] G Documents, G17, page 73
[31] G Documents, G17, page 73
[32] G Documents, G17, page 73
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, paragraph 8.1(1) of the Direction requires decision-makers to consider that the Australian Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens.
Paragraph 8.1(1) also directs decision-makers to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens with the expectation that they 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 the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
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.
Tribunal’s consideration: The nature and seriousness of Mr Palmer’s conduct to date
Paragraph 8.1.1(1)
This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i)   violent and/or sexual crimes;
ii)     crimes of a violent nature against women or children, regardless of the sentence imposed;
iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i)   causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii)     crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal has considered the evidence and both parties’ respective submissions about Paragraph 8.1.1 of the Direction in relation to this matter.
In essence:
(a)In the Applicant’s Statement of Facts and Issues in Contention[33] (ASFIC), Mr McComber accepts that this consideration cannot weigh in favour of revoking the visa cancellation decision. He contends that the relevant question is the extent to which this consideration creates a finding weight against revocation. To reduce the weight, the ASFIC submits that Mr Palmer pled guilty[34], that the suspension of his sentence after 6 months suggests a lower degree of severity[35], that Mr Palmer cannot be considered a repeat offender[36] and that there is no trend of increasing seriousness in terms of his offending.
(b)The Respondent’s Statement of Facts and Issues in Contention[37] (RSFIC) contends that the nature of Mr Palmer’s offending - trafficking cocaine for six months between April and October 2019[38] - weighs heavily against revocation.
[33] Exhibit 4.
[34] ASFIC [19]
[35] ASFIC [21]
[36] ASFIC [22]
[37] Exhibit 2
[38] G Documents, G5, page 17 at [15]). Further detail of the applicant's offending in that period is included in the Queensland Police Service Court Brief (also Supplementary Tender Bundle,S16, page 25).
Paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
These paragraphs require the Tribunal, when considering this matter, to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women and acts of family violence are viewed very seriously.
There is no evidence before the Tribunal that Mr Palmer has engaged in violent and/or sexual crimes, crimes of a violent nature against women and acts of family violence.
Paragraph 8.1.1(1)(b)
This paragraph directs the Tribunal, when considering the nature and seriousness of Mr Palmer’s criminal offending or other conduct to date, to have regard to the taxonomy set out in paragraphs 8.1.1(1)(b)(i)-(iv) as to specific crimes viewed very seriously by the Australian Government and the Australian community.
Paragraph 8.1.1(1)(b)(i)
This paragraph is concerned with whether Mr Palmer has committed any offences involving causing a person to enter into or to otherwise become a party to a forced marriage.
In the absence of evidence from Mr Palmer or the Respondent, or any reference in the material before the Tribunal to any formal conviction for such offending or related conduct that enlivens this paragraph, it is not relevant to any assessment of the nature and seriousness of Mr Palmer’s conduct.
Paragraph 8.1.1(1)(b)(ii)
This paragraph is concerned with whether Mr Palmer has committed any offences against vulnerable members of the community as defined in the Direction. There is no reference in the material before the Tribunal to any formal conviction for such offending, nor is there any reference to such conduct.
In the absence of evidence from Mr Palmer or the Respondent, or any reference in the material before the Tribunal to any formal conviction for such offending or related conduct that enlivens this paragraph, it is not relevant to any assessment of the nature and seriousness of Mr Palmer’s conduct.
Paragraph 8.1.1(1)(b)(iii)
This paragraph refers to conduct forming “...the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”.
The Tribunal finds, after considering Mr Palmer’s criminal history, that, pursuant to s 501(6)(a) he has compiled a ‘substantial criminal record’ (as defined by s 501(7)(c) of the Act). This finding enlivens paragraph 8.1.1(1)(b)(iii) to the point where an attribution of ‘serious’ can be applied to the nature and extent of Mr Palmer’s criminal history.
Paragraph 8.1.1(1)(b)(iv)
This paragraph is concerned with whether Mr Palmer has committed any crimes while in immigration detention.
In the absence of evidence from Mr Palmer or the Respondent, or any reference in the material before the Tribunal to any formal conviction for such offending or related conduct that enlivens this paragraph, it is not relevant to any assessment of the nature and seriousness of Mr Palmer’s conduct.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal is precluded from considering sentences imposed on Mr Palmer for:
(a)any violent offending that he may have committed against women or children,
(b)acts of family violence; and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.
Mr Palmer was convicted of
(a)one count of 'Unlawful possession of suspected stolen property' for which he was not further punished;
(b)one count of 'Possessing dangerous drugs' for which he was sentenced to three months imprisonment;
(c)one count of 'Possessing dangerous drugs' for which he was sentenced to one month imprisonment; and
(d)'Trafficking in dangerous drugs' for which he was sentenced to a period of four years imprisonment with a non-parole period of six months.
Imposing a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. Even after considering the suspended elements of the sentences imposed on Mr Palmer, the balance of the custodial terms imposed on him have been significant.
The Tribunal finds that the sentences imposed by the court for this Applicant’s non-precluded offending are significant. This sub-paragraph 8.1.1(1)(c) must strongly militate in favour of a finding that the sentences imposed by the court on Mr Palmer address the very serious nature of his offending.
The Tribunal considers that this paragraph carries a certain, but not determinative weight in favour of affirming the delegate’s decision.
Paragraph 8.1.1(1)(d)
This paragraph addresses two specific aspects of a non-citizen's offending: its frequency and/or whether there is any trend of increasing seriousness.
Frequency
The Queensland Police Service Court Brief details a list of charges against Mr Palmer that, contrary to Mr McComber’s contention that Mr Palmer is not a repeat offender in the ASFIC, demonstrates a degree of repetition and establishes a high frequency of trafficking and supplying dangerous drugs, albeit within the period occurring between April and October 2019.
Trend of increasing seriousness
The Tribunal considers that Mr Palmer’s criminal conduct throughout the period between April and October 2019 can be viewed conservatively as all equally serious, rather than demonstrating a trend of increasing seriousness. If the Queensland Police Charge Sheet[39] is also considered in terms of the history of Mr Palmer’s offending, rather than simply his convictions, then the Tribunal observes a trend of Mr Palmer dealing with increasingly larger quantities of dangerous drugs. This elevates what was ‘serious conduct’ into ‘very serious conduct’.
[39] Supplementary Tender Bundle, S16, pages 26-27
Paragraph 8.1.1(1)(e)

This paragraph addresses the cumulative effect(s) of Mr Palmer’s repeated offending.
The Tribunal has recognised the seriousness of crimes associated with drug supply, and the significant harm it inflicts on the Australian community: Paeu and Minister for Immigration and Citizenship [2011] AATA 792 at [40] per Senior Member Taylor; SCJD and Minister for Home Affairs [2018] AATA 4020 (SCJD) at [81]–[83] per Senior Member Cameron. In SCJD, the Tribunal found (at [81]–[83]):
The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit.
Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.
The effects of Mr Palmer’s offending have also imposed significant costs and hardship – financial, psychological, emotional, and social - on his family.
Mr Palmer’s criminal conduct has also imposed significant costs on the policing, judicial and jail systems in terms of money and resources expended.
It is clear, once these perspectives are aggregated, that the cumulative effect of Mr Palmer’s repeated offending is substantial and supports a finding of the serious nature of his offending.
Paragraph 8.1.1(1)(f)
This paragraph is concerned with whether Mr Palmer has provided false or misleading information to the Respondent Minister’s Department, including by not disclosing criminal offending.
In the absence of evidence from Mr Palmer or the Respondent that enlivens this paragraph, it is not relevant to any assessment of the nature and seriousness of Mr Palmer’s conduct.
Paragraph 8.1.1(1)(g)
This paragraph involves the issue of whether Mr Palmer has re-offended since being formally warned about the consequences of further offending in terms of his visa status.
In the absence of evidence from Mr Palmer or the Respondent that enlivens this paragraph, it is not relevant to any assessment of the nature and seriousness of Mr Palmer’s conduct.
Paragraph 8.1.1(1)(h)
This paragraph requires the Tribunal to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
There is no reference in either party’s oral or written submissions propounding or mentioning this component of the Direction. The Tribunal finds that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of Mr Palmer’s conduct.
Tribunal’s finding: The nature and seriousness of Mr Palmer’s conduct.
The Tribunal has applied and considered each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred above, the Tribunal finds that the totality of Mr Palmer’s unlawful conduct in Australia should be characterised as very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
This aspect of the Direction requires the Tribunal to assess the risk Mr Palmer poses to the Australian community if he reoffends, taking into consideration the nature of any harm and its probability.
Paragraph 8.1.2(1)
This paragraph states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2)
This paragraph provides that, in considering the risk to the Australian community, a decision-maker must have regard to the following relevant factors on a cumulative basis:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the non-citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
In assessing the risk to the Australian community, the Tribunal has first considered the evidence and then the Applicant’s and Respondent’s submissions in relation to paragraph 8.1.2.
The Respondent contends that the nature of Mr Palmer’s offending weighs heavily against revocation and that there is a risk that he will re-offend.
In the ASFIC, Mr McComber contends that Mr Palmer’s risk of re-offending is low[40] and the harm that may result from any future offending is ‘not so great’[41].
[40] ASFIC [24]
[41] ASFIC [25]
Mr Palmer acknowledged in oral testimony that there is a risk he would re-offend[42].
[42] Ibid., at [52]
The Tribunal considers that Mr Battley’s report in combination with Mr Palmer’s oral testimony set out that there is a likelihood that Mr Palmer can experience stressors and find himself with an onset of depressive effect, that he has previously had a predilection and affinity for consuming unlawful drugs, sometimes triggered by his feelings of depression and that he turned to drug trafficking to pay for his personal drug habit.
Tribunal’s Consideration: The nature of the harm to individuals or the Australian community were Mr Palmer to engage in further criminal or other serious conduct.
The Tribunal considers that the evidence before it demonstrates that the nature of the harm to both individuals and the Australian community arising from Mr Palmer’s past criminal conduct is significant, substantial and long-lasting.
This is especially apposite in terms of drug trafficking, as described above in terms of the SCJD decision.
Mr Palmer also has an unfortunate history in terms of operating and controlling a motor vehicle in Australia[43]. His conduct in this respect could have conceivably resulted in significant and adverse outcomes for pedestrians and other road users.
[43] Supplementary Tender Bundle, S4, page 5
If Mr Palmer were to re-offend in the same way as he has done in the past or engage in further criminal or other serious conduct, it is likely that there would be significant and adverse physical, psychological and material outcomes to other individuals as well as the imposition of significant harm and cost to the Australian community.
Tribunal’s Finding: The nature of the harm to individuals or the Australian community were Mr Palmer to engage in further criminal or other serious conduct.
The potential harm arising from a repeat of Mr Palmer’s criminal conduct encompasses a broad range of physical, psychological, financial, and societal consequences.
The Tribunal finds that further future criminal or other serious conduct of the categories Mr Palmer has previously engaged in would result in material physical, psychological and financial harm to the Australian community.
If Mr Palmer were to be allowed to drive in Australia, there is also the likelihood that he would commit more traffic offences and put others at risk of injury or very significant adverse outcomes for other road users, including pedestrians and drivers.
Tribunal’s Consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct.
The Tribunal has holistically considered the totality of the evidence addressing the likelihood of Mr Palmer engaging in further criminal or serious conduct.
The issues surrounding the consideration of risk under s 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn, have been extensively considered by the Tribunal and superior courts.[44]
[44] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194 stated that the reference to ‘criminal conduct’ is:
“…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.”
The clear legislative intention is that the threshold question is whether there is ‘a’ risk.[45]
The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[46]
On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
“The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
[45] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
[46] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal (FC)), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
“… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.”
In Sabharwal (FC) the Full Court noted that the Minister said he ‘could not rule out the possibility of further offending by Mr Sabharwal.’[47] The Full Court, citing Justice Moshinsky’s decision in Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588, 608 [62], found that the Minister’s statement was, in substance, also a finding that there was a risk of the individual concerned re-offending.
[47] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58] (“Sabharwal (FC)”).
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575): [48]
“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
(Added emphasis.)
[48] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].
Justice Mortimer explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924, [37], where Her Honour noted:[49]
“That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.”
[49] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Applying the reasoning in Sabharwal FC and Guo and assessing the evidence to ascertain the likelihood that Mr Palmer might engage in further offending conduct, the Tribunal first finds there is “a risk” or a likelihood that Mr Palmer will engage in further criminal or serious conduct.
Second, a consideration of the level of the risk or likelihood of Mr Palmer engaging in further criminal or serious conduct should encompass the factors that facilitate the risk or, conversely, hinder or retard the risk. Doing so enables the Tribunal to consider Justice Mortimer’s question as to “whether the risk should be “tolerated”.
To consider the level of that risk, the Tribunal notes:
Rehabilitation and Therapy:
-Mr McComber correctly identifies that Mr Palmer did not offend in the 20 month period between his arrest in October 2019 and his sentencing in July 2021, that he appears to have refrained from illicit drug use in this time, undertook treatment for substance abuse and undertook therapy.
-At the time of sentencing, the sentencing judge stated that Mr Palmer had 'taken special efforts to rehabilitate', his offending was 'completely out of character', and he was 'completely remorseful.'[50]
-He engaged in some level of rehabilitation by finding employment. The Tribunal notes that this only partly address the static risk factors identified by Mr Battley and Mr Palmer and did not introduce any new dynamic risk management factors such as greater community involvement. Mr Palmer has explained that his offending occurred in circumstances where he was facing various life stressors.[51]
[50] G Documents, G7, page 28
[51] G Documents , G5, page 18, [22]
Risk Assessment
-Queensland Corrective Services assessed in September 2021 that Mr Palmer posed a low risk of re-offending[52].
-No other formal risk assessments have been undertaken.
[52] G Documents, G10, page 35 and Supplementary Tender Bundle, S22, pages 58-59
Mr McComber submitted that Mr Palmer’s risk of reoffending is low in part due to his motivation to avoid engaging in any further criminal activity on the basis that it would deprive his children of the opportunity to be raised in and live in Australia. The Tribunal acknowledges this submission but observes that it failed to manifest itself during Mr Palmer’s six months of offending and has dealt with it under the area of ‘Additional Considerations’ below.
The Tribunal observes that both the risk and the protective factors acknowledged above were also in existence during the period of Mr Palmer’s offending and did not appear to have constrained or prevented his criminal conduct.
Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal finds that there is a risk to the Australian community should Mr Palmer commit further offences or engage in serious conduct and that this risk is a substantive and material one.
Is the risk of harm affected by any of the factors referred to in paragraph 8.1.2(2)(c) of the Direction?
Paragraph 8.1.2(2)(c) states:
‘Where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.’
The issue here is consideration of a decision not to revoke a mandatory visa cancellation. Even if was about the grant of a visa, the risk of harm would not be affected and there is no evidence to suggest strong or compassionate reasons around a short stay visa – in, fact, as Mr Palmer and his immediate family have relocated outside Australia, the reverse is more correct.
Conclusion: Primary consideration 1: Protection of the Australian community
This consideration weighs heavily in favour of affirming the delegate’s decision not to revoke the cancellation of Mr Palmer’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN.
Paragraph 8.2 of the Direction states:
1)    The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2)    This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3)    In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i)   the extent to which the person accepts responsibility for their family violence related conduct;
ii)     the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii)   efforts to address factors which contributed to their conduct; and
4)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the noncitizen’s migration status, should the non-citizen engage in further acts of family violence.

Paragraph 4 of the Direction contains this definition:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a)an assault; or
b)a sexual assault or other sexually abusive behaviour; or
c)stalking; or
d)repeated derogatory taunts; or
e)intentionally damaging or destroying property; or
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
Tribunal’s Consideration
There is no evidence before the Tribunal to suggest that Mr Palmer has engaged in family violence.
The Tribunal considers that this paragraph is not relevant and is not enlivened.
Conclusion: Primary consideration 2: Family violence committed by the non-citizen.
This consideration carries a neutral weight.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA.
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
Before considering each paragraph of the above, it is useful to identify those individuals who are relevant to any consideration of these paragraphs:
·Mr Palmer’s immediate family[53]:
-Wife, Melodie Juventin
-Minor age Son A
-Minor age Son B
·Mr Palmer’s extended family:
-Mr Palmer’s Mother
-Mr Palmer’s Sister
-Mr Palmer’s Grandfather
-Three uncles or aunts and eleven cousins in Australia
-Eight uncles or aunts, two nieces or nephews and over 30 cousins
[53] G Documents, G13, pages 47-48
Apart from the three uncles and eleven cousins in Australia, Mr Palmer’s immediate and extended families reside outside Australia.
Mr Palmer appears to have positively contributed to the community through his employment and which is attested by various support letters from his former employers[54] and his participation with a local gridiron club (G13, 55).
Paragraph 8.3(1) Consideration of the impact of this decision on Mr Palmer’s immediate family members in Australia.
[54] G Documents, G21-G24
Both Mr Dennis and Mr McComber confirm that Mr Palmer has no immediate family members or ties in Australia. Ms Juventin and their two minor age sons now reside in New Zealand, together with Mr Palmer.
Mr Palmer does not have any immediate family ties in Australia. Mr Palmer has ties to his extended family, including aunts, uncles and cousins, who reside in Australia[55].
[55] G Documents, G13, page 52
The Tribunal considers that this paragraph is not enlivened.
Paragraph 8.3(2): Consideration of Mr Palmer’s ties to Australia having regard to a child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
The evidence before the Tribunal is that the two minor age sons are both citizens of France and New Zealand[56] and that Ms Juventin is a French citizen[57].
[56] G Documents, G13, page 48
[57] G Documents, G13, page 47
Consequently, the Tribunal will treat this paragraph as neutral when assessing the strength, nature and durations of the Applicant’s ties to Australia.
Paragraph 8.3(3) Strength, nature, and duration of ties with any family or social links generally.
This paragraph looks at the strength, nature and duration of the extent of any ties Mr Palmer may have with (a) other family members; or (b) social contacts/links in Australia.
The limiting qualification to this inquiry is that these two categories of people with whom Mr Palmer may have ties must be Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.
This paragraph does not specifically offer or formulate a methodology as to the manner of how weight is to be allocated to these two categories of ties.
The Tribunal will consider Mr Palmer’s links with these two categories of people and allocate weight in his favour to the extent of whatever strength, duration, and nature there may be found to be in those links.
Considering the three aunts or uncles and eleven cousins in Australia, the evidence available to the Tribunal consists of the applicant’s aunty, Natasha Palmer’s statement[58] and Mr Palmer’s oral testimony[59].
[58] G Documents, G25, page 97
[59] Transcript, page 11, line 17 – page 12, line 28
Apart from Mr Palmer’s reference in his oral testimony to a two-year involvement in a local gridiron competition, there is no other evidence of his social links.
The Tribunal considers that this paragraph provides a moderate but limited weight when assessing the totality of the strength, nature, and duration Applicant’s ties to Australia.
Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here.
This paragraph requires the Tribunal to look at the time Mr Palmer has spent in Australia and to take account of three elements:
a)Whether Mr Palmer was ordinarily resident in Australia during his formative years?
b)Whether he positively contributed to the Australian community during his time here?
c)Can the weight allocable to the strength of Mr Palmer’s ties to Australia based on the length of time he has spent in the Australian community be lessened because (1) he did not spend his formative years here and (2) he began offending soon after arriving here?
Addressing a), Mr Palmer has resided in Australia for 12 years, having arrived as a 23 year old, having spent his formative years in New Zealand and Tahiti.
Addressing b), there is evidence of his employment in the landscaping[60] and mining industries[61], as well as his involvement in a local gridiron competition.
[60] G Documents, G21, page 93
[61] G Documents, G22-24, page 94-96
Addressing c), Mr Palmer did not spend his formative years in Australia and began his criminal conduct approximately 9 years after his arrival in 2010. His traffic offending commenced earlier in 2012. The Tribunal considers that the weight allocable to the strength and nature of Mr Palmer’s ties to Australia is only slightly lessened by this element.
Tribunal’s Consideration
The Tribunal considers, based on the above analysis, that this consideration provides some limited weight in favour setting aside the delegate’s decision to not revoke the cancellation of Mr Palmer’s visa.
Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia.
This consideration carries a limited and non-determinative degree of weight towards setting aside the delegate’s decision to not revoke the cancellation of Mr Palmer’s visa.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.
Paragraph 8.4 of the Direction requires decision-makers to determine, where relevant, if revocation is in the best interests of any minor children in Australia.
This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided.
If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.[62]
[62] The Direction, para 8.3(3).
In considering the best interests of the child, the Direction requires the following factors at paragraph 8.4(4) to be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Direction requires that the Tribunal determine whether non-revocation under section 501CA is, or is not, in the best interests of each child in Australia who will be affected by the decision.
There is nothing in the evidence and submissions before the Tribunal that identifies any minor children in Australia who would be affected by the decision. The applicant has two children and two nieces and nephews, none of whom are in Australia.
Tribunal’s Consideration
The Direction requires the Tribunal to treat the best interests of these minor children as a primary consideration.
In the absence of any minor children in Australia to enliven this paragraph, it is not relevant to any assessment of this matter.
Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision.
This consideration is not enlivened and carries neutral weight.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction provides:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.”
In addition, paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns because of conduct in Australia or elsewhere, of the following kinds:
a)acts of family violence;
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery;
f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As with Paragraph 8.5(4) of the Direction, this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the case.
Clause 8.5(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[63]
[63] FYBR (2019) 272 FCR 454 (“FYBR”), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[64]
[64] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[65]
[65] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56. See also Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Observing the norm stipulated in paragraph 8.5(1), the Tribunal now considers the guidance provided by paragraphs 5.2(2) to (6) of the Direction:
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, However, Australia will generally may afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (sic) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Tribunal has found that Mr Palmer has not committed any of the kinds of conduct enumerated at paragraph 8.5(2) to (6) of the Direction.
The next question is whether there are any factors which modify the Australian community’s expectations.
This question is informed by the principles in paragraphs 5.2(4) to (5) of the Direction.
Paragraph 8.5(3) provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(4):
"This consideration is about the expectations of the Australian community as a whole, and in this respect, decision – makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case."
Sub-paragraph 5.2(4) uses the term ‘limited stay visa’ which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes,
Section 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain, ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non-permanent or ‘temporary’ visas.
Tribunal’s Consideration
Mr Palmer held a Special Category (Temporary) (Class TY) (Sub Class 444) visa. This is a visa allowing the visa holder to remain in Australia indefinitely.[66]
[66] Migration Regulations 1994 (Cth), reg 200.511.

This implies that sub-paragraph 5.2(4)’s lower tolerance does not apply.
Mr Palmer has lived in Australia since he was 23 years old. He began his serious offending approximately 9 years later, while committing traffic offences starting some two years after his arrival.
Mr Palmer has made some contributions to the Australian community.
Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life. Mr Palmer has lived in Australia for approximately 36% of his life, arriving as an adult and spending approximately 10 years in the community before going to prison and subsequently immigration detention.
The Tribunal has also found Mr Palmer’s offending conduct to be very serious.
The Tribunal also observes the requirements of paragraph 8.4(3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that Mr Palmer poses a substantive and material risk of re-offending.
The Tribunal is satisfied that Mr Palmer has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
Conclusion: Primary consideration 5: Expectations of the Australian community
This consideration carries significant weight in favour of affirming the delegate’s decision to not revoke the cancellation of Mr Palmer’s visa.
OTHER CONSIDERATIONS
The Tribunal now considers each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations of paragraph 9 of the Direction.
Other Consideration(a): Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to consider the following:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2)       A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)       International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding.
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
9.1.2 Non-citizens not covered by a protection finding
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3)       Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
Mr Palmer does not claim that he is owed non-refoulement obligations.
However, Mr McComber does contend that other relevant legal consequences flow from a non-revocation decision. The Tribunal will address these as additional considerations below.
Tribunal Finding: Other Consideration (a): Legal consequences of the decision.
The Tribunal considers that this Other Consideration (a) is not enlivened and carries neutral weight.
Other Consideration (b): Extent of impediments if removed.
Clause 9.2(1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)      The non-citizen’s age and health;
b)      Whether there are substantial language or cultural barriers; and
c)      Any social, medical and/or economic support available to them in that country.
The Applicant’s written submissions
Mr McComber frames the issues attendant to this consideration from Mr Palmer’s perspective in paragraphs [94] to [97] of the Applicant’s Statement of Facts & Issues in Contention:
a)Although Mr Palmer voluntarily departed Australia for New Zealand, reuniting with Ms Juventin and his two children, he faces impediments in establishing himself in New Zealand.
b)First, he had not previously resided in New Zealand prior to his removal from Australia in 2022.
c)Second, he has limited, if any, family or social support in New Zealand.
d)Third, neither Ms Juventin nor their two minor age sons are New Zealand citizens, meaning that Ms Juventin does not currently have work rights in New Zealand (in contrast, Ms Juventin held work rights in Australia as the holder of a subclass 461 visa). Ms Juventin’s inability to earn any secondary household income is a significant impediment for their family.
e)In those circumstances, the Applicant submits that the impediments he would face if removed to New Zealand weigh heavily in favour of revocation.
The Respondent’s written submissions
The Respondent contends that:
a)As Mr Palmer has already removed himself from Australia, this other consideration is not relevant.
b)If the Tribunal does view this consideration as relevant, Mr Palmer may face some obstacles in establishing himself in New Zealand but will be able to prevail, establish himself and achieve basic living standards.
c)Mr Palmer is in good physical health and faces no language or cultural barriers.
d)There is no evidence before the Tribunal that he will be unable to access the same social, medical and economic support as other New Zealand citizens[67].
e)He should have access to services that will enable him to continue his rehabilitation and treat his depression.
[67] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Mr. Palmer’s oral testimony[68] suggests that he is establishing himself in New Zealand.
[68] Transcript, page 17, line 41 – page 18, line 22 and page 38, lines 1-27
Tribunal’s Consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Palmer, if removed from Australia to New Zealand will face in establishing himself and maintaining basic living standards taking the specific factors below into account.
The Tribunal acknowledges that Mr Palmer has removed himself to New Zealand, rendering the assessment somewhat non-determinative. .
For completeness, the Tribunal will assess the evidence around this consideration.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Palmer is 36 years old.
The evidence before the Tribunal implies that Mr Palmer is physically healthy and, aside from his mental health issue, there is nothing that would countervail against him being removed to New Zealand.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Palmer, based on his oral testimony and the other evidence, would face few, if any linguistic difficulties or cultural barriers if he was removed to New Zealand.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal considers that Mr Palmer would have access to same level of social and economic support as other New Zealand citizens. His oral testimony about his activities in New Zealand supports this view[69].
[69] Ibid, note 68
Tribunal’s analysis and consideration
The Tribunal has considered the extent of any impediments that Mr Palmer, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards, taking into account the specific factors set out in paragraph 9.2(1).
Tribunal finding: Other Consideration (b) Extent of impediments if removed.
Having regard to the analysis referrable to each of the three sub-paragraph components of this Other Consideration (b), the Tribunal finds that Mr Palmer would not suffer any significant impediment if it were the case that he was still in Australia and faced removal to New Zealand.
The Tribunal finds that this Other Consideration (b) carries some weight in in favour of affirming the delegate’s decision not to revoke the cancellation of Mr Palmer’s visa.
Other Consideration (c): Impact on victims
Clause 9.3(1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Tribunal finding: Other Consideration (c): Impact on victims
There is no relevant evidence before the Tribunal addressing the impact of a decision under s 501CA on members of the Australian community, including any victim of the Applicant’s offending.
The Tribunal finds that Other Consideration (c) carries a neutral weight.
Other consideration (d) Impact on Australian business interests if Mr Palmer cannot remain here.
Paragraph 9.4 (1) compels an assessment of Mr Palmer’s employment links to Australia with reference to any impact his removal may have on “Australian business interests”.
There is no evidence before the Tribunal that Mr Palmer’s absence from his employment or his removal from Australia will significantly compromise the delivery of a major project or an important service. Mr Palmer’s employment skills and experience are not such that his unavailability as a potential employee would adversely affect Australian business interests more broadly.
Tribunal finding: Other Consideration (d): the impact on Australian business interests if Mr Palmer cannot remain here.
The Tribunal finds that Other Consideration (d) carries a neutral weight.
FINDINGS: OTHER CONSIDERATIONS
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
Other Consideration (a) – legal consequences of the decision:
·Other Consideration (a) is not enlivened and carries neutral weight.
Other Consideration (b) - extent of impediments if removed:
·Other Consideration (b) carries some weight in in favour of affirming the delegate’s decision not to revoke the cancellation of Mr Palmer’s visa..
Other Consideration (c) - impact on victims:
·Other Consideration (c) carries a neutral weight.
Other Consideration (d) – Impacts on Australian business interests:
·Other Consideration (d) carries a neutral weight.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[70]
[70] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
The High Court has held that the scheme found in section 501CA of the Act 'necessarily requires the Minister to consider and understand the representations received' and emphasised the breadth of what may constitute 'another reason' why the original decision should be revoked[71].
[71] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [13], [15] per Keane, Gordon, Edelman, Steward and Gleeson JJ.
In this matter, Mr McComber's submissions raise the following additional considerations if the decision to revoke Mr Palmer is not revoked:
(a)Mr Palmer is likely to be permanently excluded from applying for a visa to re-enter Australia;
(b)Mr Palmer 's eldest child may not be able to become an Australian citizenship on his tenth birthday due to the operation of s 12(1)(b) of the Australian Citizenship Act 2007 (Cth) and its requirement that they are ordinarily resident in Australia during the first ten years of their life; and
(c)Mr Palmer 's family may not be eligible to apply for a New Zealand Subclass 461 visa which would enable them to re-enter Australia.
(d)The Tribunal should have regard to the best interests of Mr Palmer’s two minor age sons in deciding whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. Mr Palmer’s sons are only French citizens. As Mr Palmer himself became a New Zealand citizen by descent, his children did not, and cannot, obtain New Zealand citizenship by descent.
Addressing these points, the Tribunal observes:
a)    The Tribunal acknowledges that Mr Palmer’s visa cancellation will permanently exclude him from entering Australia unless there is a future exercise of discretion by the Minister. This is an explicit consequence of failing the character test and failing to make out another reason to revoke the mandatory cancellation of the visa in question.
b)    Additionally, the outcome of any future visa application by Mr Palmer is speculative and unsupported by the evidence before the Tribunal.
c)    Raising the consequences of a decision by the Tribunal to affirm the decision to cancel Mr Palmer’s visa in terms of a minor child’s future ability to obtain Australian citizenship faces three issues:
i.While Mr McComber initially contended this point in relation to paragraph 8.4 of the Direction, the Tribunal considers that paragraph 8.4 is more focused on a separation between a non-citizen and minor children than on the possible future rights of the minor child.
ii.The consequences in question are remote and call for speculation over the outcome of a potential future application.
iii.If the consequences were of substantial import, then there should be evidence provided and arguably the minor child in question should have applied, via their parents, to be a party to this matter[72] – otherwise they lack standing before the Tribunal in a matter that focuses on the non-citizen.
iv.The question of decisions regarding New Zealand visas is one properly reserved for the New Zealand government.
[72] Sections 3 and 30, AAT Act
After considering these additional considerations, the Tribunal finds that they carry a slight and limited weight in favour of not affirming the delegate’s decision to cancel Mr Palmer’s visa.
CONCLUSION

Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Palmer does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
Primary Consideration 1 - protection of the Australian community from criminal or other serious conduct:
·This consideration weighs heavily in favour of affirming the delegate’s decision not to revoke the cancellation of Mr Palmer’s visa.
Primary Consideration 2 - whether the conduct engaged in constituted family violence:
·This consideration carries a neutral weight.
Primary Consideration 3 - the strength, nature and duration of ties to Australia:
·This consideration carries a limited and non-determinative degree of weight towards setting aside the delegate’s decision to not revoke the cancellation of Mr Palmer’s visa.
Primary Consideration 4 - best interests of minor children in Australia affected by the decision:
·This consideration is not enlivened and carries neutral weight.
Primary Consideration 5 – expectations of the Australian Community:
·This consideration carries significant weight in favour of affirming the delegate’s decision to not revoke the cancellation of Mr Palmer’s visa.
The Tribunal has also set out above the weight attributable to the other considerations and the additional considerations.
Having regard to the Direction and the totality of the evidence before the Tribunal, a comprehensive, holistic, and integrated view of the primary considerations, the other considerations and the additional considerations leads this Tribunal to a finding that it is not satisfied of there being another reason to revoke the cancellation of the Applicant’s visa.
Accordingly, the Tribunal makes a finding of affirming the delegate’s decision to not revoke the cancellation of Mr Palmer’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.

I certify that the preceding two hundred and twenty-two paragraphs (222) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

...................................
Associate
Dated: 21 July 2023

Date of hearing: 28 March 2023

Legal Representative for the Applicant: Mr McComber of Sentry Law

Legal Representative for the Respondent: Mr Dennis of Minter Ellison Lawyers

Exhibit Number

Description of Exhibit

Party

Date of Document

Filing Date

1

G Documents

(bookmarked G1-G30, paged 1-135)

R

Various

2 November 2022

2

Respondent’s Statement of Facts, Issues and Contentions

(paged 1-9)

R

16 March 2023

16 March 2023

3

Supplementary G Documents

(bookmarked S1-S59, paged 1–169)

R

Various

9 March 2023

4

Applicant’s Statement of Facts, Issues and Contentions

(paged 1-12)

A

8 March 2023

9 March 2023

5

Copy of Ministerial Direction 99

A

23 January 2023

16 March 2023

6

Statement of the Applicant (Unsigned)

A

Undated

22 March 2023

7

Statement of the Applicant (Signed)

A

26 March 2023

27 March 2023

8

Parole Letter from New Zealand

A

27 March 2023

27 March 2023

Exhibit Number	Description of Exhibit	Party	Date of Document	Filing Date
1	G Documents (bookmarked G1-G30, paged 1-135)	R	Various	2 November 2022
2	Respondent’s Statement of Facts, Issues and Contentions (paged 1-9)	R	16 March 2023	16 March 2023
3	Supplementary G Documents (bookmarked S1-S59, paged 1–169)	R	Various	9 March 2023
4	Applicant’s Statement of Facts, Issues and Contentions (paged 1-12)	A	8 March 2023	9 March 2023
5	Copy of Ministerial Direction 99	A	23 January 2023	16 March 2023
6	Statement of the Applicant (Unsigned)	A	Undated	22 March 2023
7	Statement of the Applicant (Signed)	A	26 March 2023	27 March 2023
8	Parole Letter from New Zealand	A	27 March 2023	27 March 2023

Click here to enter decision.

Date of hearing:	28 March 2023
Legal Representative for the Applicant:	Mr McComber of Sentry Law
Legal Representative for the Respondent:	Mr Dennis of Minter Ellison Lawyers