Panagiotidis and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 672

Panagiotidis and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 672 (4 April 2022)
Division:GENERAL DIVISION
File Number(s): 2022/0542
Re:Paraskevas Panagiotidis
APPLICANT

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

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:4 April 2022
Place:Melbourne

The decision of the Respondent dated 11 January 2022 not to revoke the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa is set aside and substituted with a decision that there is another reason why the mandatory cancellation should be revoked.
...............[SGD].........................................................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – Mandatory cancellation of visa – national of Greece – Class BF Transitional (Permanent) visa – failure to pass character test – history of drug related offences – single conviction for armed robbery – whether another reason why the mandatory cancellation should be revoked – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Secondary Materials
Direction No. 90 — 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
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
4 April 2022
BACKGROUND

The Applicant applied on 20 January 2022 for review of a decision of a delegate of the Minister for Home Affairs under s 501CA(4) of the Migration Act 1958 (the Act), dated 11 January 2022, not to revoke the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa.
The Applicant arrived in Australia as an infant aged two years old in 1962, having been born in Greece. Since his arrival, he has spent his entire life in Australia and has never travelled overseas. The Applicant left school during Year 11 and commenced work in his father’s building business, an occupation he continued with.
Currently aged 62, the Applicant’s first criminal conviction was in 1978 when he was aged 18. His was first sentenced to a term of imprisonment in 1979, and over the subsequent twenty years was frequently convicted of offences and sentenced to numerous terms of imprisonment. The Applicant has offended in a variety of ways, predominantly in relation to drugs, and there is a single conviction for armed robbery.
The Applicant’s criminal record is absent any convictions for an approximately twenty-year period between 1998 and 2018, in which year he was again convicted of drug offending. He was sentenced to a term of imprisonment exceeding 12 months and, as a result, his visa was subject to mandatory cancellation under s 501(3A) of the Act on the basis that he did not pass the character test.
Representations were made on the Applicant’s behalf in December 2019 seeking revocation of the mandatory cancellation decision, and it is the decision in January 2022 not to revoke the cancellation that is before the Tribunal.
The Applicant was represented in this matter and lodged a Statement of Facts, Issues and Contentions (SFIC). At the hearing, the following material was admitted:
(a)Statement of the Applicant dated 23 February 2022 (Exhibit A1);
(b)Detainee Request Form dated 17 November 2021 (Exhibit A2);
(c)Statement of IW dated 23 February 2022 (Exhibit A3); and
(d)Statement of Laz Panas dated 23 February 2022 (Exhibit A4).
The Respondent lodged a SFIC, documents under s 501G of the Act (G documents) and supplementary G documents.
In addition to hearing evidence from the Applicant, evidence was given by his niece who I will refer to here as IW as she is a minor, and his brother Mr Laz Panas.
LEGISLATION
The Act provides in s 501 for the cancellation of a visa on character grounds. Cancellation is mandatory under s 501(3A) where a decision maker is satisfied that a person has a substantial criminal record (s 501(3A)(a)(i)). It is a further requirement that the person be, at the time of cancellation, serving a full-time custodial sentence of imprisonment (s 501(3A)(b)).
A substantial criminal record pertains to the Applicant as a result of the combined effect of s 501(6)(a) and (7)(c) in circumstances where he was sentenced to a term of imprisonment of 12 months or more.
A mandatory cancellation decision of this kind may be revoked under s 501CA(4) of the Act, if upon the making of representations by the person concerned, a decision maker is satisfied either that the person passes the character test (s 501CA(4)(a)), or there is ‘another reason’ why the original decision should be revoked (s 501CA(4)(b)).
Directions have been issued by the Minister under s 499 of the Act which a decision maker must comply with when considering a revocation request in these circumstances. ‘Direction 90’ (the Direction) dated 8 March 2021 sets out ‘primary’ and ‘other’ considerations which must be taken into account. Primary considerations are to generally be given greater weight than other considerations; one or more primary considerations may outweigh other primary considerations (paragraph 7).
The Direction states that certain principles (paragraph 5.2) provide the framework for the process to be undertaken, being:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
ISSUES
I am satisfied on the basis of the material before me and the submissions of the parties that the Applicant fails the character test, having been sentenced in the District Court of South Australia in April 2018 to a term of imprisonment of three years and four months.
Accordingly, I must now consider whether there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
PRIMARY CONSIDERATIONS
Protection of the Australian community
In addressing this consideration, I am to have particular regard to the first of the principles set out in paragraph 5.2 of the Direction, that is, that remaining in Australia is a privilege conferred in the expectation that non-citizens be law-abiding, respect the law enforcement framework, and will not cause or threaten harm (paragraph 8.1(1)). This consideration otherwise has two specific elements which I address in turn.
Nature and seriousness of conduct to date
The Direction sets out a number of factors that a decision maker must have regard to when considering the nature and seriousness of the Applicant’s criminal offending and other conduct. Crimes of a violent nature are specified as being viewed very seriously by the Australian Government and community, noting that the range of conduct that may be considered very serious is not limited by the terms of the Direction (paragraph 8.1.1(1)(a)(i)).
Relevantly, I am also to have consideration to the sentences imposed by courts, the frequency of offending and any trend of increasing seriousness, and the cumulative impact of repeated offending (paragraphs 8.1.1(1)(c), (d) and (e)).
The Applicant’s record of offending is set out in a national criminal history check (G3). In addition to the brief outline already given, I note from this record as follows:
(a)the Applicant’s convictions commence in 1978 with hunting offences, a driving offence and a conviction related to theft;
(b)he received convictions in each subsequent year until 1984, including a variety of driving and drug offences and offences related to theft;
(c)convictions in 1987, 1990 and 1993 appear to be interspersed with periods of incarceration, and the Applicant’s offending continued to be focused around drugs, other than the armed robbery conviction in 1990;
(d)he was convicted for driving offences in 1993 and 1994 and was then convicted in each of 1997 and 1998 on multiple drug charges, but also for a weapon-related offence and theft interstate in Victoria;
(e)in 2018, the Applicant was charged with trafficking offences; and
(f)the Applicant has received terms of imprisonment across a wide spectrum of time commencing with 28 days, rising to 12 months (suspended), 18 months, and between 2 and in excess of 7 years.
No independent reference was provided in this matter for the amount of time the Applicant spent in prison over the years, but I note that by his own estimate the Applicant appears to have been incarcerated for 15-16 years in total.
The Applicant was sentenced in the District Court of South Australia in April 2018 in respect of his most recent offending (G4). In the course of sentencing, the judge remarked as follows:
(a)the Applicant was found in March 2016 by police to be in possession of bags of methylamphetamine weighing a total of 14.76 grams and 5.14 grams of cannabis oil, and at his home was discovered 181.2 grams of cannabis;
(b)his offending history includes possession and sale of heroin, with a history of use over seven years, as well as a brief history of use of hallucinogenics and ecstasy;
(c)intravenous drug use led in the past to the Applicant developing Hepatitis A and C;
(d)the report of a psychologist prior to sentencing indicates that:
(i)the Applicant described mild to moderate cannabis use, for relaxation, throughout his life;
(ii)after the death of his mother, the Applicant became a moderate user of methylamphetamine;
(iii)the Applicant was relatively intelligent and his long-term history of substance abuse led him into conflict with the law and repeat offending;
(iv)the Applicant had recently used drugs prior to sentencing;
(v)from testing administered, the Applicant satisfied the criteria for cannabis use disorder and stimulant use disorder;
(vi)the Applicant lacked insight into his dysfunctional pattern of drug abuse; and
(vii)there was a significant risk of reoffending as the Applicant continued to justify and rationalise his use of illicit substances;
(e)the Applicant submitted to the court that he sold methylamphetamine and cannabis to support his own habit, and took part in the sale of cannabis oil not for financial benefit but to assist others for medicinal purposes;
(f)trafficking in controlled drugs is a serious offence and the Applicant was sentenced on the basis of being a ‘street dealer’, the amount of methylamphetamine described as ‘not insignificant’;
(g)the sentence in respect of trafficking charges reflected the fact these were not isolated instances, and the Applicant appeared to have been dealing since October 2014;
(h)the Applicant appeared to have been trafficking cannabis oil since November 2015, and to have been contributing to a profitable business for someone;
(i)sentencing took into account the Applicant’s late guilty plea, that he had not taken steps to rehabilitate himself, including through counselling or other treatment, and his prospects of rehabilitation were not considered good, based on the observations of the psychologist; and
(j)a lower than usual non-parole period was set in order to permit a ‘fairly lengthy period on parole with a structured and monitored program’ upon release, with the non-parole period set at one year and nine months.
In respect of his most recent offending, the Applicant stated that he was severely affected emotionally by the death of his mother. He agreed that he felt a sense of personal guilt about what he considered the misdiagnosis of his mother’s terminal cancer.
In his written and oral evidence, the Applicant described a series of medical evaluations in the years prior to his mother’s death in which she was found to be healthy, despite her not feeling well. He considered that he should have sought other opinions. The cancer diagnosis was made when his mother arrived in Greece and it became necessary to organise a medical repatriation flight.
The Applicant gave written and oral evidence about the circumstances surrounding his armed robbery conviction. He stated that he was in prison with a co-offender at the time of being charged and was under pressure not to make a plea.
More specifically, the Applicant stated that he was using heroin at the time of the offending and had been promised drugs in exchange for driving his co-offenders for an evening. After several stops, the group stopped at a harness racing track where the Applicant waited in the car. At this time, the Applicant stated, the co-offenders committed the armed robbery against a bookkeeper using a baseball bat and replica pistol.
It was submitted for the Applicant that his offending was of decreasing frequency, and that notwithstanding the time spent in prison, the Applicant had spent a greater amount of time in the community. Only one crime of a very serious nature appears in his record and he has not been convicted of other violent crimes.
It was contended for the Respondent that the Applicant sought by his evidence to minimise the violent crime for which he was convicted. It is further contended that, following Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 (Ali), an Applicant could not impugn a conviction, and the Tribunal should avoid findings of fact inconsistent with those of a court. It was contended this consideration weighs heavily against revocation.
In reply, the Applicant’s representative responded that the substance of the contention in respect of the armed robbery was that it was an aberration. It was open to the Tribunal, also following Ali, to examine for itself the entirety of the conduct in question (citing specifically Minister for Immigration and Ethnic Affairs and Gungor (1982) 63 FLR 441 (Gungor)).
I consider that, in the particular circumstances of this matter, the application of the authorities contended for by the Applicant is the better interpretation. I note that it is not questioned by either party that Ali also stands clearly for the view that a Tribunal must not question a finding of guilt by a court.
In Ali (at [45]), Branson J effectively paraphrases aspect of the judgments of Fox J and Sheppard J in Gungor in finding that a Tribunal may make its own assessment of the entirety of a person’s conduct, including the nature and seriousness of conduct that led to a conviction.
The only evidence I have before me about the circumstances of the armed robbery conviction is that of the Applicant himself. I consider it appropriate, given the guidance of the authorities cited, to afford it some weight. The Applicant was convicted of a crime involving violence, but his participation in that crime was, on his evidence, of a limited nature. His conduct would also appear to have been related to his own drug use at that time.
I note that while this offending is referenced in the remarks of the sentencing judge in respect of the Applicant’s most recent offending, Her Honour did not appear to afford it any particular significance beyond it being one of the offences making up the Applicant’s ‘significant criminal offender history’.
Accordingly, while I find that this conduct should be considered very serious, I consider this specific offence should be afforded overall somewhat less weight in the wider context of the Applicant’s offending history.
The wider context itself presents a quite concerning picture. The Applicant has received numerous and quite substantial terms of imprisonment and has engaged in criminal conduct of a wide and diverse variety over the years.
I do not accept the contention that the Applicant has demonstrated a decreasing trend of seriousness. However, I would understand this contention to draw attention to the fact that the Applicant experienced a prolonged period without criminal offending prior to his 2018 conviction, and that the effective sentence in that instance was much lower than his immediate prior effective sentence.
Equally, there is uncontested evidence that the Applicant’s drug offending has – apparently throughout – been driven primarily by his personal use and a substance abuse problem which has only been identified in relatively recent professional assessment. Further, the Applicant’s relapse appears to have been related to his difficulty coping with his mother’s death.
I consider that perhaps the most critical dimension of the Applicant’s offending history is its persistence, and its focus on a wide range of different drugs. I find, therefore, the Applicant’s offending to be quite serious.
Risk to the Australian community
In addressing this consideration, 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’ (paragraph 8.1.2(1)).
In assessing risk, I am to have regard, cumulatively, to the nature of the harm to individuals or the community of further criminal conduct, and its likelihood, taking into account information and evidence on the risk and evidence of rehabilitation (paragraph 8.1.2(2)).
In his evidence at hearing, the Applicant stated that he had participated in drug rehabilitation some decades ago. He also stated that he did, as indicated in the sentencing remarks, continue with cannabis use prior to sentencing. Contrary to his written statement, the Applicant gave evidence that he had not remained drug-free for a substantial period of time. He had in fact returned to social cannabis use some years prior to his 2016 offending.

He also gave evidence that during his most recent period of imprisonment he made several requests for assistance with drug counselling. The Applicant stated that he had been told that programs were suspended during COVID, and he had also been advised that he could not commence receiving assistance until his parole commenced.
The Applicant was unable to remember the circumstances surrounding a case note that appeared to relate to a request for assistance (SG1, pp 175-6). This note is dated 6 December 2019, and may have been recorded by a social worker at Port Augusta Prison, and it reads (relevantly):
Seen in response to a KEX request – he was asking about suboxone – SW referred him to speak to SAPHS and also asked him to consider DASSA upon release.
The Applicant stated that he realises that in the past he very rarely asked for help when his drug use was out of control. The Applicant understood now that he cannot get help if he does not ask for it. He acknowledged submitting a request for a drug counselling course while in detention, in November 2021 (Exhibit A2).
The Applicant accepted in cross-examination that he had returned to drug use after his mother’s death and reiterated that he now knows how to seek help. He also stated that he had resisted numerous opportunities to use drugs whilst incarcerated, emphasised that he intended to pursue professional help from ‘day one’ of his release. The Applicant stated he understood how drug use ‘all leads to criminal behaviour, looking back’.
The Applicant and his brother, Mr Panas, both gave evidence that the Applicant would be immediately offered work in the brother’s business upon release. Evidence was given that the Applicant is a qualified building supervisor and will be able to continue in this role. Mr Panas stated that the Applicant is able to work under himself as a licensed builder.
Mr Panas gave evidence that he considered the Applicant to be a very skilled and versatile worker. He stated that their father had not retired until the age of 80 and had since had a stroke and was somewhat frail now. Mr Panas had owned his own building business since 1999 but stated that they had all collaborated closely in building over the years.
Mr Panas described the Applicant as a very quiet person who, in his opinion, had lived a stable and productive life prior to his most recent offending. Mr Panas stated that he was shocked at the effect the misdiagnosis of his mother’s cancer had upon the Applicant. The Applicant became introverted and less lively at work.
Mr Panas stated that he was aware of his brother’s drug-related criminal history when younger, but was not ‘fully across’ the armed robbery offending. He did not consider the Applicant to be a violent person at all. Asked whether he thought his brother would potentially get in trouble again, Mr Panas stated that he has a lot of family support and is ‘pretty confident’ his brother will not relapse. He stated that the Applicant would be ‘under his wing’ and that he would provide any support or financing required to assist in rehabilitation.
Mr Panas also stated that the family is in need of the Applicant’s support. By this, he meant in part that he himself needed emotional support in light of the recent death of his partner.
For the Applicant, it was submitted that there was evidence he had remained drug-free since his last offence, and that the Pandemic had frustrated his efforts to engage in rehabilitative programs. It was contended there was clear evidence he had sought such assistance. It was submitted that the acronyms in the December 2019 prison case note refer to relevant public health and drug services.
It was submitted that the Applicant had acknowledged his drug use and relapse, that he has plans to seek assistance in the future, and will have the support of his family. The fact that he had been sentenced as a ‘street dealer’ on the last occasion was emphasised. It was contended that he should be considered a low risk of reoffending.
It was contended for the Respondent that the Applicant had been sentenced most recently on the basis that he did not have good prospects for rehabilitation and that the judge had found a significant risk of reoffending. It was also submitted that his drug use had continued up to the point of sentencing. With respect to steps taken since sentencing to rehabilitate, it was contended the time delay until a formal request appears to have been made indicates that meaningful steps had not been taken toward rehabilitation.
It was submitted that the Tribunal should not be satisfied that the Applicant will not in fact return to drugs as a personal coping mechanism, as he had only a limited period clear from drugs prior to his mother’s death. It is contended in the Respondent’s SFIC this consideration weighs heavily against revocation.
While the nature and extent of the Applicant’s drug dealing history remains somewhat vague, he has a record of repeated offences of dealing in a range of illegal drugs, albeit that his most recent offence was as a street dealer. I consider this activity can be understood as very harmful to the Australian community. Accordingly, I find the nature of the harm that might arise should the Applicant reoffend to be serious.
There is somewhat mixed evidence as to risk. The professional opinion relied upon in sentencing was that there was significant risk of reoffending. Despite this and the admonition represented by the sentence handed down for the most recent offending, the sentencing judge explicitly acknowledged the need for structured rehabilitation. A lower than usual non-parole period was fixed as a result.
I accept the Applicant’s evidence that he has remained drug-free since incarceration. Equally, the Applicant’s relapse appears now for the first time, perhaps, to be explained at least in part by a clinical finding of substance use disorder.
The Applicant has given evidence of his intention and willingness to seek help. He also appears to have the support of his family. It would seem, though, that close family ties were not a preventive measure in the past.
On the basis of the evidence overall, I find that there is at least a moderate risk of the Applicant reoffending.
Summary finding
Given the findings made in respect of the separate elements of this primary consideration, I find overall that it weighs strongly against revocation.
Family violence
There is no material before me indicating that this consideration (paragraph 8.2) is engaged and accordingly it weighs neutrally.
Best interests of minor children
This consideration requires a determination about whether non-revocation of the Applicant’s visa is, or is not, in the best interests of a child affected by that decision (paragraph 8.3(1)).
There is only one minor child to whom this consideration applies and that is the Applicant’s niece, IW, who will turn eighteen in the middle of 2022.
In written and oral evidence, both the Applicant and IW herself attested to the close bond that existed between them. Mr Panas also gave evidence consistent with this picture.
The Applicant played a significant role in IW’s life upon the death of her father in 2007. IW stated that the Applicant was also close to two of her other older siblings, but that she and the Applicant shared a closer link. IW described the Applicant as a father figure and stated that his return to Greece would be ‘like losing my father again’.
IW and her mother continue to live in a location some two hours’ drive from Adelaide. The Applicant stated that from the time of the death of his brother-in-law, he saw IW every two or three weeks. He travelled regularly to assist in completing his sister’s house, and IW stated that he played a role in caring for the children including by putting them to bed.
IW stated that she intended to study in Adelaide after completing schooling and looked forward to maintaining a close and ongoing relationship with the Applicant in the future.
IW stated that she had not been aware of the Applicant’s incarceration until perhaps a year into his sentence and did not visit him in prison. Both IW and the Applicant stated that their most recent engagements were via a video chat and a call in late 2021.
For the Applicant, it is contended that this consideration should be given significant weight. For the Respondent, it is contended that only limited weight be afforded this consideration, bearing in mind IW’s age.
I consider the nature and duration of the relationship with IW to be quasi-parental, given the apparently unusually close bond, and taking into account that it was not interrupted until recently by incarceration. I accept that IW’s mother fulfilled a primary parental role (paragraph 8.3(4)(a)).
Balanced against this is the stark fact that IW remains a minor for only a matter of a few months (paragraph 8.3(4)(b)).
For this reason in particular, I find that this consideration should be given some, but only limited weight in favour of revocation.
Expectations of the Australian community
This consideration is expressed with reference to the expectation that non-citizens obey Australian laws, and is expressed normatively (paragraph 8.4(1)). Where there has been serious conduct in breach of this expectation, or an unacceptable risk that a non-citizen may do so, the Direction states that the Australian community expects the Government not to allow such a person to remain here.
The Direction states further that the nature of character concerns or offences may be such that the expectation would be triggered (paragraph 8.4(2)). None of the particular instances of serious or violent offending specified arise for consideration in the Applicant’s case.
This expectation is said to apply regardless of whether there is a measurable risk of causing physical harm to the Australian community (paragraph 8.4(3)).
It was submitted on behalf of both the Applicant and Respondent that this consideration weighs against revocation. In its SFIC, the Respondent submits this consideration weighs heavily against revocation. At the hearing it was contended that due to the nature of the consideration, the expectation is that the Applicant does not retain his visa.
The expectation underpinning this consideration is also expressed in the principles enunciated in paragraph 5.2. Australia is stated as having a low tolerance of any criminal conduct by those who have contributed to the Australian community only for a short period (paragraph 5.2(4)).
In contrast, the Australian community ‘may’ afford a higher level of tolerance in respect of offending by a non-citizen who has lived in Australia for most of their life, or from a very young age.
As this expectation is expressed in the form of a norm, I consider that it is indeed triggered in the Applicant’s circumstances. However, consistent with the manner of exercising the discretion of which this consideration forms a part (paragraphs 6 and 7), it is appropriate to also consider what weight to attribute to it.
I noted above the Applicant’s history of repeat criminal offending as an adult, and the considerable period of time he has served in prison. Against this, I noted above a long period of time in which the Applicant remained free of convictions and contributed to the work of the family business.
In addition to these considerations, which I consider to be quite finely balanced, I add the fact that the Applicant arrived in Australia at the age of two. For this reason, I consider it appropriate to take into account that higher tolerance may be afforded an individual in such circumstances.
Accordingly, I find that this consideration weighs against revocation.
OTHER CONSIDERATIONS
There is no material before me indicating that the other considerations international non-refoulement obligations (paragraph 9.1) and the impact on victims of a revocation decision (paragraph 9.3) are engaged. I therefore find that these other considerations weigh neutrally.
Extent of impediments if removed
In addressing this other consideration, I am to take into account a number of factors: the Applicant’s age and health; any substantial language or cultural barriers; and social, medical and/or economic support available to him in Greece (paragraph 9.2(1)). Importantly, the measure expressed in this other consideration is that of establishing and maintaining ‘basic living standards’ in the context of that generally available to other Greek citizens.
The Applicant’s age of 62 has already been noted. He gave evidence that he takes some medication for an occasional neck complaint and for cholesterol. The Applicant had previously suffered from hepatitis A and C but these are not currently active conditions.
It is quite apparent from the evidence of the Applicant and Mr Panas that the Applicant intends to return to his previous occupation. As noted above, the Applicant has worked in the family businesses throughout his adult life. He has diverse skills, attested to by his brother. The evidence demonstrates that he is skilled in carpentry and a range of areas considered by his brother to be of value.
The Applicant and Mr Panas both gave evidence that they were raised speaking a dialect of the Greek language, possibly influenced by a Turkish element as the Applicant stated his grandparents moved to Greece from Turkey early in the twentieth century. Both attested to being unable to understand contemporary Greek as broadcast in publicly available media. Mr Panas stated that their hometown was very remote.
No direct evidence was given at the hearing as to the nature and extent of government-based social, medical or economic supports that might be available to the Applicant in Greece. The Applicant himself stated that he currently has no savings or superannuation.
The nature and extent of existing family connections was explored quite thoroughly at the hearing. The Applicant himself was not familiar with a list of relatives lodged with his Personal Circumstances Form (G7). The Applicant stated that he had never held a passport and never travelled overseas. He did state that he has an aunt who visited Australia about twelve years ago.
This list was prepared with input from Mr Panas, and it contains some eleven individuals described as residents of Greece. It became apparent in evidence that the list includes deceased relatives. Mr Panas stated that the living relatives comprise a 90-year-old aunt who is in poor health and some five cousins of unspecified age. He stated that he had ‘no contact with anyone for twelve years’ and that he had visited Greece once, about twelve years ago.
The evidence, overall, indicated that there has been no regular contact with family in Greece. Mr Panas was asked whether he would endeavour to put the Applicant in contact with relatives and he repeated that he did not have contact with them.
It was submitted for the Applicant that he is near a ‘traditional’ retirement age in Greece. Therefore, notwithstanding reasonable health and trade skills, it was likely that he would be unemployed, and that he faced a language barrier. It may be assumed he carries an entitlement to government support, but otherwise the Applicant has no known means of support.
For the Respondent, it was contended that the Applicant is likely to face impediments but given his health and skill set there was no impediment to gaining employment. It was submitted that no evidence had been advanced in respect of retirement age and practices in Greece. The Applicant has at least six relatives in Greece, and it was contended the Tribunal should be slow to accept that Mr Panas would not offer assistance with making a connection.
I accept on the basis of the evidence that the Applicant is in generally good health for his age. I also consider that his stated intention of working in the building trade indicates something about his general health condition.
I accept that the evidence demonstrates that the Applicant has no effective means of communication in the Greek language.
I accept that the Applicant is a skilled and experienced builder. I further accept that he has little or no personal financial resources. The evidence overall demonstrates to my satisfaction that the Applicant has no personal knowledge of the family network in Greece. Equally, I accept that there is likely to be some means of establishing a connection of some limited kind.
It appears from a search of the website of the Department of Foreign Affairs and Trade that there is no comprehensive country report for Greece, in the form often found in relation to other countries. This, and the state of the evidence (both oral and written), leaves me with a paucity of information by which I might balance the competing submissions.
Even taking into account the relatively modest measure by which this other consideration is to be understood, I find on the evidence overall that the Applicant would face quite substantial impediments if he were to return to Greece. I place particular weight on the language and cultural barriers the Applicant will experience, having arrived in Australia at an extremely young age, and never having travelled, including to his home country.
I also place weight on the absence of meaningful and substantial social and family connections. I am also uncertain, given the language and cultural barriers identified, whether any such connections would operate substantially in the Applicant’s favour.
In summary, I consider the Applicant’s Greek heritage to offer barely marginal positive benefits, if any. Accordingly, I find that this other consideration weighs strongly in favour of revocation.
Links to the Australian community
Strength, nature and duration of ties
There are two parts to this element of this other consideration: the impact on the Applicant’s immediate family members who are citizens, permanent residents or have a right to remain indefinitely; and the Applicant’s ties to the community, with more weight to be given to time spent contributing positively to the community (paragraph 9.4.1(1) and (2)).
The Applicant’s immediate family in Australia consists of his father, brother Mr Panas, and three sisters and I note the Applicant has described them as all holding Australian citizenship (G6). The list of relatives (G7) identifies eight nieces and nephews, all citizens.
The Applicant stated in evidence that he had lived for a large part of his life in the family home and intends to return there to reside with his father and a sister. His father is presently in his mid-80s and the evidence indicates that this sister is experiencing some personal issues after a recent health crisis.
The relationship between the Applicant and his other sister, the mother of IW and, in particular with the younger children, especially IW, was set out above.
While not addressed in evidence at the hearing, I note the Applicant states in a letter submitted with his revocation request (G8) that he has a son, born in 1984 when the Applicant was in prison. The Applicant states that he was denied access in family law proceedings but is aware of his son’s current name. This son is referred to in the remarks of the sentencing judge.
The Applicant did not elaborate greatly in writing or in his evidence about the impact his removal might have upon family in Australia. The Applicant does state in writing that given his advanced age his father is unlikely to be able to travel overseas in future.
Mr Panas was emphatic in his evidence that their father would be shattered if the Applicant were sent to Greece. He stated that his partner had only very recently died, and that this bereavement meant that he would rely on the Applicant not only for support in the business, but for emotional support. It was therefore submitted that all of the Applicant’s family would be affected by his departure.
I noted above the impact IW stated that the Applicant’s removal from Australia would have. She stated there would also be an impact on her mother as the Applicant is her brother, and he had always been there for that family, noting that IW stated she did not address this issue at length with her mother.

IW expressed a clear desire to have an ongoing relationship with the Applicant, which she hoped to maintain as a university student, living in the city.
As noted above, the Applicant’s first recorded offending is in 1978, at which time he was eighteen years old. When not incarcerated, the Applicant was engaged in the building business with either his father or brother. No other evidence was advanced with respect to community or social ties in Australia.
It was submitted for the Applicant that he had resided in Australia for 60 years, unbroken by any travel, and that his family is in Australia and are citizens or have a right to reside indefinitely. It was contended that his offending began many years after his arrival at a very young age, and was the result of bad company.
It was further submitted that when time spent in prison is taken into account, the Applicant had spent some 28 years contributing positively to the Australian community through his employment in the family businesses.
The Respondent’s written and oral submissions did not elaborate upon this part of this other consideration. In the Respondent’s SFIC, it is contended that, to the extent that this consideration weighs in the Applicant’s favour, the consideration does not outweigh the primary considerations.
The weight attributed to the primary consideration best interests of minor children (paragraph 8.3) was moderated on the basis that IW will turn eighteen in several months. However, I take into account here the nature and significance for IW of the relationship she has with the Applicant. I consider this to be a relationship of some importance.
I also consider it appropriate to take account of the fact that it is an uncontested fact in this matter that the Applicant has an adult son. It is reasonable to conclude that, notwithstanding the near complete absence of a relationship, his return to Greece would add an almost insurmountable impediment to any future reconciliation.
I accept that the Applicant is a member of a particularly close immediate family group. He has made a notable contribution to the life of at least one younger relative, IW, and to her mother and other siblings. His father and brother, with whom he has both worked throughout his life, are both widowers and will both be affected emotionally by his departure.
Impact on Australian business interests
This element of this other consideration is described as to ‘generally only be given weight’ where a revocation decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia’ (paragraph 9.4.2(3)). The parties submitted, and it is apparent from the evidence, that these features are not present in the Applicant’s circumstances.
I have noted the Applicant’s future intentions, supported by Mr Panas, to return to the family business.
Mr Panas described in his evidence that business had now stabilised after a recovery in demand post-Pandemic. He has twelve contractors and employees and he believed that he could ‘certainly do’ with the Applicant’s help.
For the Applicant, it was submitted that in the post-Pandemic economy there had been an increase in demand for the building industry, and that his skills and ability to fulfil a supervisory role would be of great benefit to the family business.
The Respondent contended that some limited weight might be afforded this element.
I accept that there is no clear bar to taking this other consideration into account, albeit it does not appear to be designed primarily with the Applicant’s circumstances in mind.
That said, the evidence is not particularly strong. I accept, as I have elsewhere in these reasons, the expectation that the Applicant will return to a productive role in a viable business. However, I am unable to identify a particularly critical contribution to that business by the Applicant that would elevate this element to any greater significance than some limited weight.
Summary finding
Taking into account my findings in respect of the two elements of this other consideration, I find that it weighs strongly in favour of revocation.
CONCLUSION
In respect of the primary considerations, I have found that ‘protection of the Australian community’ weighs strongly against revocation, ‘best interests of minor children’ weighs in a limited manner in favour of revocation, and ‘expectations of the Australian community’ weighs against revocation.
In respect of the other considerations, I have found that both ‘extent of impediments if removed’ and ‘links to the Australian community’ weigh strongly in favour of revocation, and that the other considerations weigh neutrally.
The Applicant’s cumulative record of offending is a substantial mark against him. However, on the evidence, he has an underlying substance use problem for which he has not to date received appropriate treatment. This issue was a prominent factor in the most recent sentence handed down. However, were the Applicant to be returned to Greece at his age, he would face a wide domain of complete unknowns, in a place foreign to him.
As noted above, primary considerations should generally be considered to outweigh other considerations. In the particular circumstances of this Applicant, however, I find that the other considerations prevail, and that the mandatory cancellation of his visa should be revoked.
DECISION
For the reasons given above, the decision of the Respondent dated 11 January 2022 not to revoke the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa is set aside and substituted with a decision that there is another reason why the mandatory cancellation should be revoked.

I certify that the preceding 128 (one hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

............................[SGD]............................................
Associate
Dated: 4 April 2022

Dates of hearing: 16 and 17 March 2022

Counsel for the Applicant: Naomi Kereru

Solicitors for the Applicant:

Advocate for the Respondent:

M.P. Thompson & Associates

Hailey Musgrove

Solicitors for the Respondent: HWL Ebsworth Lawyers

Dates of hearing:	16 and 17 March 2022
Counsel for the Applicant:	Naomi Kereru
Solicitors for the Applicant: Advocate for the Respondent:	M.P. Thompson & Associates Hailey Musgrove
Solicitors for the Respondent:	HWL Ebsworth Lawyers