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

PCNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2165 (7 July 2021)
Division:GENERAL DIVISION
File Number(s):2021/2365
Re:PCNY
APPLICANT

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

Tribunal:Senior Member B. Pola
Date:7 July 2021
Place:Brisbane

DECISION
Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 13 April 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
...............................[SGD].........................................
Senior Member B. Pola
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No. 90 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Chung and Minister for Immigration and Border Protection (Migration) [2017] AATA 895
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
TBNM and Minister for Home Affairs (Migration) [2019] AATA 850
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
SECONDARY MATERIALS
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member B. Pola
7 July 2021
INTRODUCTION AND BACKGROUND

The Applicant, PCNY is a 58 year old male citizen of New Zealand, who migrated to Australia in July 1987 when he was 24 years of age. Movement records indicate the Applicant was last granted a Class TY Subclass 444 Special Category (Temporary) visa (herein referred to as ‘Visa’ in these reasons) on arrival into Australia in May 1999[1].
[1] Exhibit G1, G19, page 77.
The Applicant has a lengthy criminal history in Australia, with the first entries in his criminal record appearing in 1992, and the last entry recorded in early 2020. The Applicant’s offending consists of significant drug related offending, breaches of bail, the unlawful possession of a weapon, contravening a direction or requirement, traffic related offences, a fraud/dishonesty related offence, violent assaults including assaults occasioning bodily harm, breach of protection orders, and conduct involving family violence[2].
[2] Exhibit G1, G7, pages 33 to 36.
In February 2020 before the Supreme Court, the Applicant was sentenced to imprisonment for five years for trafficking in dangerous drugs[3].
[3] Exhibit G1, G7, page 34.
Whilst the Applicant was serving a term of imprisonment, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (herein referred to as ‘Minister’ or ‘Respondent’), pursuant to s501(3A) of the Migration Act 1959 (Cth) (herein referred to as the ‘Migration Act’), decided on 12 March 2020 to mandatorily cancel the Applicant’s Visa (herein referred to as the ‘Visa Cancellation Decision’). This was done on the basis that the Applicant did not pass the character test pursuant to s501(6) of the Migration Act [4].
[4] Exhibit G1, G20, pages 78 to 84.
Following the Visa Cancellation Decision, the Applicant made representations to the Respondent[5].
[5] Exhibit G1, G16, pages 56 to 70; Exhibit G17, pages 71 to 74; Exhibit G18, pages 75 to 76.
On 13 April 2021, the Respondent decided not to revoke the cancellation of the Applicant’s Visa pursuant to s501CA(4) of the Migration Act[6].
[6] Exhibit G1, G3, pages 15 to 32.
The Applicant lodged an application with the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) on 19 April 2021 seeking a review of the abovementioned decision not to revoke the cancellation of his Visa, within the required time frame[7].
[7] Exhibit G1, G1, pages 1 to 14. For the Tribunal to have jurisdiction to review the decision, the Applicant must
The application was heard in Brisbane on 22 June 2021, the Applicant was self‑represented, and the Respondent was represented by Mr Liam Dennis (Minter Ellison), both of whom appeared by video link. The Tribunal heard oral submissions from the Applicant and Respondent, in addition to submitted evidence as outlined in the Exhibit Register in Annexure 1 of these reasons. The Tribunal observes that no witnesses were called to give evidence in support of the Applicant.
ISSUES
Legislation regarding the revocation of the mandatory cancellation of visas is found in s501CA(4) of the Migration Act, which provides:
“(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.”
The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s Visa may be exercised.
The Tribunal refers to the Full Court of the Federal Court of Australia’s observations in the Minister for Home Affairs v Buadromo[8]:
[8] [2018] FCAFC 151.
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[9].
[9] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
[Tribunal underline for emphasis]
Therefore, there are two issues for consideration before the Tribunal which must be decided:
(i)whether the Applicant passes the character test; and
(ii)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
If the Applicant were to succeed on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s Visa must be revoked[10].
[10] Ibid.
Does the Applicant pass the character test?
As previously referred to in these reasons, the character test is defined in s501(6) of the Migration Act. A person will not pass the character test if they have a “substantial criminal record” pursuant to s501(6)(a) of the Migration Act. Relevantly, s501(7)(c) of the Migration Act provides that a person is considered to have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Tribunal is of the view that the Applicant does not pass the character test as they were convicted of trafficking dangerous drugs before the Supreme Court in February 2020 and were sentenced to a term of imprisonment of five years[11].
[11] Exhibit G1, G7, page 34.
The Tribunal is of the view that the Applicant is therefore unable to rely on s501CA(4)(b)(i) of the Migration Act for the mandatory cancellation of their visa to be revoked.
Is there another reason why the cancellation of the Applicant’s Visa should be revoked?
In considering whether to exercise the discretion in accordance with s501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by s499(2A) of the Migration Act to comply with directions made under the Migration Act.
In view of this, Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (herein referred to as the “Direction”) must be applied[12]. The Direction outlines a framework for decision makers with respect to exercising discretion in accordance with s501CA of the Migration Act, paragraph 6 of the Direction provides:
[12] On 15 April 2021, the former applicable direction, Direction No 70 – Visa refusal and cancellation under s501
and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by
Direction No. 90 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a
visa under s501CA.
“6. Exercising discretion
Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[13].
[13] The Direction, sub-paragraph 6.
[Tribunal emphasis]
Paragraph 7 of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case, and that when applying the primary and other considerations, “information and evidence from independent and authoritative sources should be given appropriate weight”.
Paragraph 7(2) of the Direction provides that, “Primary considerations should generally be given greater weight than the other considerations”; additionally, paragraph 7(3) of the Direction provides that, “One or more primary considerations may outweigh other primary considerations”.
The considerations relevant in the context of a revocation decision appear in Paragraph 8 of the of the Direction, which stipulates the following primary considerations:
(i)Protection of the Australian community from criminal or other serious conduct (herein referred to as “Primary Consideration 1”);
(ii)Whether the conduct engaged in constituted family violence (herein referred to as “Primary Consideration 2”);
(iii)The best interests of minor children in Australia (herein referred to as “Primary Consideration 3”); and
(iv)Expectations of the Australian community (herein referred to as “Primary Consideration 4”).
The Other Considerations which must be taken into account are listed in paragraph 9 of the Direction. These considerations are:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims;
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
A number of principles are set out in paragraph 5.2 of the Direction which decision makers must consider in the exercise of their discretion. The Tribunal has transposed these:
“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 non-citizens 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 non-citizens 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 other 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.”
The Tribunal will now address the four Primary Considerations.
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
Paragraph 8.1(1) of the Direction, requires decision makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. It further states 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; will respect important institutions; and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction requires decision makers to give consideration to the following requirements when determining the weight to be applied to Primary Consideration 1:
(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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The Applicant’s criminal offending history can be gleaned from the s501 G‑Documents[14], in addition to documents produced under summons[15] comprising:
[14] Exhibit G1.
[15] Exhibit R2.
(a)The Applicant’s criminal history in Australia which appears in a document entitled, “Nationally Coordinated History Check Results” dated 7 May 2020[16];
[16] Exhibit G1, G7, pages 33 to 36.
(b)Sentencing remarks in the Supreme Court of Queensland, February 2020[17];
[17] Exhibit G1, G8, pages 37 to 41.
(c)Sentencing remarks in the Magistrates Court of Queensland, May 2010[18];
[18] Exhibit G1, G9, pages 42 to 43.
(d)Verdict and Judgement report dated 27 May 2020[19];
[19] Exhibit G1, G10, page 44.
(e)Queensland Corrective Services, Integrated offender management system, sentence calculation details report from the Queensland Department of Corrective Services dated 13 February 2020[20];
[20] Exhibit G1, G11, pages 45 and 46.
(f)Queensland Police Court Brief from June 2002[21];
[21] Exhibit G1, G12, pages 47 and 48.
(g)Queensland Police Court Brief from December 2003[22];
[22] Exhibit G1, G13, page 49.
(h)Department of Home Affairs file note dated 10 March 2021[23];
[23] Exhibit G1, G14, pages 50 and 51.
(i)International movement records of the Applicant from the Department of Home Affairs[24];
[24] Exhibit G1, G19, page 77.
(j)Documents produced by Queensland Supreme Court of various dates[25];
[25] Exhibit R2, S1 to S14, pages 1 to 60.
(k)Documents produced by a Magistrates Court of various dates[26];
[26] Exhibit R2, S15 to S23, pages 61 to 155.
(l)Documents produced by a Magistrates Court of various dates[27];
[27] Exhibit R2, S24 and S25, pages 156 to 173.
(m)Documents produced by Queensland Corrective Services of various dates[28];
[28] Exhibit R2, S26 to S89, pages 174 to 695.
(n)Documents produced by Queensland Police of various dates[29]; and
[29] Exhibit R2, S90 to S101, pages 696 to 866.
(o)Documents produced by the Department of Transport and Main Roads[30].
[30] Exhibit R2, S102 and S103, pages 867 to 877.
(p)
Overview of the Applicant’s criminal and other offending history
The Tribunal observes that for some of the Applicant’s criminal offending put to them during the course of the hearing, the Applicant either could not recall their offending, sought to recast the events of their offending, or denied their offending (or aspects of their offending) ever took place.
With respect to whether or not the Tribunal is able to bring into question the underlying facts of prior convictions of the Applicant, the Tribunal observes that this has been considered on a number of occasions by judicial officers.
The Tribunal refers to the Full Federal Court’s decision of HZCP v Minister for Immigration and Border Protection[31] (herein referred to as “HZCP”), where His Honour McKerracher J stated at paragraph 77:
[31] [2019] FCAFC 202.
“As a matter of policy, it would be highly undesirable if the Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function: Waterside Workers’ Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 per Griffiths CJ (at 444); Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 per Isaacs J (at 175); Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 per Mason CJ (at 258); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ (at 27) and Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 225 CLR 1 per McHugh J (at [53]).The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.”
[Tribunal underline for emphasis]
The Tribunal further refers to the reasons of their Honour Colvin J in HZCP with respect to administrative tribunals’ views on facts underlying criminal convictions[32]:
[32] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (at 165 [189]).
“…The defence of criminal proceedings is a matter in which the accused person may be expected to have taken considerable interest. The prosecution must discharge a high burden of proof according to formal rules of evidence and by means of a procedure that is keenly attuned to ensuring a fair process for the accused. For those reasons, where before an administrative decision-maker reliance is placed upon the fact of a conviction or a sentence, great weight is to be afforded the factual findings that necessarily underpin the conviction or sentence especially where it is the criminal defendant who is inviting an administrative tribunal to reach a different view as to the facts...”
[Tribunal underline for emphasis]

The Tribunal does not regard the Applicant as having discharged the substantial onus of challenging the facts of the convictions against him. The Tribunal gives significant weight to the Courts’ consideration of the facts of the offences, and to the seriousness with which their Honours have regarded the offending of the Applicant.
33.The Tribunal will provide a brief overview of the Applicant’s criminal offending history, which is captured in the following table[33]:
[33] Exhibit G1, G7, pages 33 to 36.

Court

Date of Conviction / Result

Date of Offence(s)

Offence(s)

Outcome(s)

Magistrates Court

March 2020

June 2019

(1) Possess property suspected of having been used in connection with the commission of a drug offence

(1) to (3) Conviction recorded, not further punished

April 2017

(2) Possessing dangerous drugs

April 2017

(3) Possess utensils or pipes etc for use

Supreme Court

February 2020

[Dates redacted by Tribunal]

(1) Trafficking in dangerous drugs

(1) and (2) Conviction recorded, imprisonment for five years, suspended for five years, after serving 20 months, serious drug offence certificate issued in relation to offences

[Dates redacted by Tribunal]

(2) Trafficking in dangerous drugs

Magistrates Court

July 2019

April 2019

(1) Failure to appear in accordance with undertaking

(1) and (2) Conviction recorded, and fined

July 2019

(2) Failure to appear in accordance with undertaking

Magistrates Court

October 2018

October 2018

Possess utensils or pipes etc for use

Conviction recorded, and fined

Magistrates Court

October 2018

July 2018

Possess utensils or pipes etc that had been used

Conviction recorded, and fined

Magistrates Court

August 2018

July 2018

Contravene direction or requirement

Conviction recorded, fined, and default imprisonment of 1 day

District Court

February 2018

October 2016

(1) Supplying Schedule 1 dangerous drugs

(1) and (2) Conviction recorded and probation of 12 months; (3) Conviction recorded and not further punished

October 2016

(2) Unlawful use of motor vehicles aircraft or vessels

October 2016

(3) Possess utensils or pipes etc that had been used

Magistrates Court

January 2018

October 2017

Contravene direction or requirement

Conviction recorded, fined and disqualified from driving for one month

Magistrates Court

December 2017

July 2017

(1) Possessing dangerous drugs

(1) and (2) Conviction recorded, and fined

July 2017

(2) Possess utensils or pipes etc for use

Magistrates Court

September 2017

January 2017

Fraud – Dishonestly gain benefit/advantage

Conviction recorded, fined, and restitution of $2,605

Magistrates Court

November 2016

November 2016

(1) Possess utensils or pipes etc for use

(1) and (2) Conviction recorded, and fined

November 2016

(2) Possess utensils or pipes etc for use

Magistrates Court

May 2016

March 2016

Possession of a knife in a public place or school

Conviction recorded, and fined,

default imprisonment of two days

Magistrates Court

December 2015

November 2015

Offence to operate a vehicle during number plate confiscation period

Conviction recorded, and fined

Magistrates Court

May 2010

May 2010

Assaults occasioning bodily harm

Conviction recorded, sentenced to six months imprisonment served concurrently

Magistrates Court

July 2004

December 2003

(1) Assaults occasioning bodily harm

(1) and (2) Convicted and fined, default imprisonment of one month

December 2003

(2) D&FVP Breach of Order – respondent served with order

District Court

March 2004

June 2002

Serious assault

Conviction recorded, nine months imprisonment to be served by intensive correction order

Magistrates Court

July 2003

June 2003

(1) Breach of bail undertaking

(1) and (2) Convicted and fined, default imprisonment of four days

June 2002

(2) Obstruct Police Officer

Magistrates Court

March 2002

March 2002

Behave in disorderly manner

No conviction recorded, fined, default imprisonment one day

Magistrates Court

March 2002

March 2002

(1) Unlawful use of motor vehicles, aircraft or vessels

(1) and (2) No conviction recorded, community service 150 hours

March 2002

(2) Possession of property suspected stolen or unlawfully obtained

Magistrates Court

February 2002

February 2002

Behave in disorderly manner

No conviction recorded, fined, default imprisonment two days

Magistrates Court

February 1992

Unknown

(1) Resist police

For (1) and (2) fined for each offence; (3) convicted and discharged

(2) Resist police

(3) Drunk in a public place

Court	Date of Conviction / Result	Date of Offence(s)	Offence(s)	Outcome(s)
Magistrates Court	March 2020	June 2019	(1) Possess property suspected of having been used in connection with the commission of a drug offence	(1) to (3) Conviction recorded, not further punished
April 2017	(2) Possessing dangerous drugs
April 2017	(3) Possess utensils or pipes etc for use
Supreme Court	February 2020	[Dates redacted by Tribunal]	(1) Trafficking in dangerous drugs	(1) and (2) Conviction recorded, imprisonment for five years, suspended for five years, after serving 20 months, serious drug offence certificate issued in relation to offences
[Dates redacted by Tribunal]	(2) Trafficking in dangerous drugs
Magistrates Court	July 2019	April 2019	(1) Failure to appear in accordance with undertaking	(1) and (2) Conviction recorded, and fined
July 2019	(2) Failure to appear in accordance with undertaking
Magistrates Court	October 2018	October 2018	Possess utensils or pipes etc for use	Conviction recorded, and fined
Magistrates Court	October 2018	July 2018	Possess utensils or pipes etc that had been used	Conviction recorded, and fined
Magistrates Court	August 2018	July 2018	Contravene direction or requirement	Conviction recorded, fined, and default imprisonment of 1 day
District Court	February 2018	October 2016	(1) Supplying Schedule 1 dangerous drugs	(1) and (2) Conviction recorded and probation of 12 months; (3) Conviction recorded and not further punished
October 2016	(2) Unlawful use of motor vehicles aircraft or vessels
October 2016	(3) Possess utensils or pipes etc that had been used
Magistrates Court	January 2018	October 2017	Contravene direction or requirement	Conviction recorded, fined and disqualified from driving for one month
Magistrates Court	December 2017	July 2017	(1) Possessing dangerous drugs	(1) and (2) Conviction recorded, and fined
July 2017	(2) Possess utensils or pipes etc for use
Magistrates Court	September 2017	January 2017	Fraud – Dishonestly gain benefit/advantage	Conviction recorded, fined, and restitution of $2,605
Magistrates Court	November 2016	November 2016	(1) Possess utensils or pipes etc for use	(1) and (2) Conviction recorded, and fined
November 2016	(2) Possess utensils or pipes etc for use
Magistrates Court	May 2016	March 2016	Possession of a knife in a public place or school	Conviction recorded, and fined, default imprisonment of two days
Magistrates Court	December 2015	November 2015	Offence to operate a vehicle during number plate confiscation period	Conviction recorded, and fined
Magistrates Court	May 2010	May 2010	Assaults occasioning bodily harm	Conviction recorded, sentenced to six months imprisonment served concurrently
Magistrates Court	July 2004	December 2003	(1) Assaults occasioning bodily harm	(1) and (2) Convicted and fined, default imprisonment of one month
December 2003	(2) D&FVP Breach of Order – respondent served with order
District Court	March 2004	June 2002	Serious assault	Conviction recorded, nine months imprisonment to be served by intensive correction order
Magistrates Court	July 2003	June 2003	(1) Breach of bail undertaking	(1) and (2) Convicted and fined, default imprisonment of four days
June 2002	(2) Obstruct Police Officer
Magistrates Court	March 2002	March 2002	Behave in disorderly manner	No conviction recorded, fined, default imprisonment one day
Magistrates Court	March 2002	March 2002	(1) Unlawful use of motor vehicles, aircraft or vessels	(1) and (2) No conviction recorded, community service 150 hours
March 2002	(2) Possession of property suspected stolen or unlawfully obtained
Magistrates Court	February 2002	February 2002	Behave in disorderly manner	No conviction recorded, fined, default imprisonment two days
Magistrates Court	February 1992	Unknown	(1) Resist police	For (1) and (2) fined for each offence; (3) convicted and discharged
(2) Resist police
(3) Drunk in a public place

The Tribunal will provide some further detail with respect to the Applicant’s more serious criminal offending conduct captured in the above table, in addition to other conduct relevant to the application of the Direction.
Trafficking dangerous drugs
The Applicant was convicted of two counts of trafficking dangerous drugs before the Supreme Court in February 2020, for which he received a term of imprisonment of five years.
The Applicant co-operated with police with respect to his trafficking dangerous drugs offences, resulting in the Applicant receiving a reduced sentence; and had pleaded guilty to the offending, saving the community time and money. These concessions by the Applicant were taken into account in the custodial sentence which they received for their convictions. The Tribunal refers to the sentencing remarks of their Honour, before the Supreme Court which describe the Applicant’s conduct[34]:
[34] Exhibit G1, G8, page 37 to 41.
“…Your offending was particularly serious. In the case of the first trafficking count, you were involving in assisting another person in their drug trafficking operation. In respect of the second trafficking count, you also were involving in assisting another person in their drug trafficking operation.
What is disturbing is that those two people are not the same person. You have engaged in assisting the trafficking in drugs at a substantial level in respect of two separate people over this extended period of time. Your involvement included collecting debts, sourcing drugs, supplying drugs and, on one occasion, sourcing a gun.
You had at one time a substantial number of customers yourself in relation to the first count of drug trafficking. That drug trafficking operation was a substantial operation which sold at street level.
The second drug trafficking operation was also substantial. It involved quite a quantity of drugs and, disturbingly, involved also a circumstance where you participated in recovering debts owed to that trafficking operation.
Whilst it is not alleged that you actually carried out any offences of violence in doing so, there is no doubt that you participated in threats to extract the outstanding debts by way of violence.
…
You do have a relevant past criminal history. The offences for drugs, however, all were committed around the time of the trafficking counts, and in circumstances where those are your first convictions for drugs.
That is consistent with a person who has developed an addiction or dependency upon drugs much later in life. That fact causes me to be satisfied that there are some prospects of rehabilitation.
It cannot be said that those prospects are good. You have been given the benefit of parole in the past. You have been given the benefit of probation. You were subject to a probation order at the time you committed the second trafficking count. That does not auger well from the point of view of rehabilitation.
However, it cannot be said that you do not have prospects of rehabilitation. Accordingly, I do intend to frame the sentence to allow for those prospects…”
With respect to the Applicant’s submissions regarding his trafficking dangerous drugs convictions from February 2020, the Applicant accepted the facts of their offending in submissions before the Tribunal. They stated their offending had stemmed from a leg injury which had prevented them from working. They stated they had no other way of making money so they had turned to drug use and selling drugs. The Applicant expressed remorse for their actions[35].
[35] Exhibit G1, G17, page 74.
The Tribunal observes the Applicant was on a 12 month probation order from an earlier conviction in February 2018 relating to supplying schedule 1 dangerous drugs (in October 2016); which was in place during the period the Applicant was convicted of trafficking dangerous drugs[36].
Family violence related conduct and related criminal convictions
[36] Exhibit G1, G7, page 34; Exhibit R2, S92, page 789.
Evidence before the Tribunal indicates a history of violence involving the Applicant and various partners from 2003 to 2018. The Tribunal observes that some incidents have resulted in criminal convictions and sentences of imprisonment, whilst other incidents have not resulted in criminal convictions. These incidents not resulting in charges or convictions are nonetheless documented by police in the evidence before the Tribunal.
The Tribunal has counted six protection orders naming the Applicant as the Respondent, spanning the period of 2003 through to 2018 (with a current protection order in place until February 2023)[37]. During the course of the hearing, the Applicant agreed that a number of protection orders had been taken out against him from multiple partners[38].
[37] Exhibit R2, S91, pages 700 to 703.
[38] Transcript 22 June 2021, 15, lines 42 to 47.
The Tribunal will now refer to some of the reported incidents of family related violence involving the Applicant.
December 2017
A Queensland Police Service report regarding an application for a Domestic Violence Protection Order refers to an incident involving the Applicant and his partner whom he had been in a relationship with for approximately eight months and had resided with (but did not have children)[39].
[39] Exhibit R2, S93, pages 826 and 827.
The report contains two version of events; that of the victim and that of the Applicant. The victim claims that during the incident they were subjected to violence from the Applicant, including having her head slammed into a car steering wheel, being kicked violently to their arms and torso area when in a foetal position on the ground, being forcefully dragged by their foot and being kicked in their buttocks, and backhanded by the Applicant to her face, in addition to verbal threats.
The Applicant’s version of events given to police was that he was arguing with the victim, and he was trying to get away from the victim whilst the victim was screaming at him and calling him names. The Applicant told police that he had tried to get away but the victim had positioned herself under one of his car wheels preventing him from leaving, and eventually moved so that the Applicant could leave. The Applicant admitted he had hit the victim in the buttocks with a closed fist, and admitted to threatening the victim by stating that he could punch through brick walls which intimidated the victim, in addition to alluding to his size compared to her. The Applicant denied any further physical assaults of the victim.
The report went on to state that police observed the victim to be genuinely fearful of the Applicant, which is why (according to the police) she was initially reluctant to tell police what had transpired. She ultimately stated that she was fearful because she had been victim to numerous incidents of domestic violence committed by the Applicant throughout their relationship, stating that the Applicant had in the past held a gun to her head and threatened to strangle her on one occasion. The victim was not forthcoming with further information and did not want to make any further criminal complaints of assault against the Applicant, but stated to police that there had been so many instances where she had been assaulted because of his violence that she had lost track of individual incidents. In the report, police observed the victim to have facial abrasions consistent with her account of having been backhanded by the Applicant.
During the course of the hearing, the Applicant denied the incident occurred as reported, and that it was made up by the victim[40].
October 2015
[40] Transcript 22 June 2021, page 15, lines 5 to 29.
A Queensland Police Service report regarding an application for a Domestic Violence Protection Order refers to an incident that had occurred in September 2015 between the Applicant and a victim whom the Applicant had been in a relationship with for three months[41]. The report refers to a verbal argument between the victim and the Applicant, which had involved the Applicant grabbing the victim by the scruff of their clothes and pushing her into a metal handrail on the staircase.
[41] Exhibit R2, S96, pages 833 and 834.
The report goes on to state that the victim claimed the Applicant had slapped them in the face hard with an open left hand, and on their nose. The victim further stated that the Applicant was standing over them with a closed fist ready to strike them, when the victim’s friend came out of their room, pulled the victim aside and told the Applicant to go away (with the Applicant refusing to).
The victim’s friend walked her into their bedroom then tended to the victim’s bleeding nose with a towel, with the victim stating the Applicant kept referring to her as a “c*nt”. The victim further stated the Applicant tried to enter the room, but the friend prevented them from entering. The victim claimed the Applicant had the keys to her car and stated to her that she would not get her car back. The next day when the victim was lying on the couch, the Applicant approached her with a phone claiming that one of her friends wanted to speak with her, to which the victim told the Applicant to “go away”.
The report states that the Applicant stood over the victim, telling the person over the phone that the victim didn’t want to talk to them, and hung up the phone. The victim stated the Applicant then punched her in the back of the head with a closed right fist. The victim cried and grabbed her belongings and drove to the nearby police station, providing police with her version of events.
The report states that the Applicant also attended the police station and provided a version of events which was very similar to that of the victim, but denied having assaulted the victim and stated the victim had pushed him down the stairs, and as a result the victim fell down as well. The report states the victim had not reported all instances of physical violence, but due to the physical assault and increasing anger displayed by the Applicant they were becoming more fearful.
The Tribunal observes that a protection order was put in place from October 2015 and expired in October 2016[42]. When the reported facts of this offending were put to the Applicant at the hearing, the Applicant restated their version of events given to the police, that the victim had pushed the Applicant down the stairs and that the Applicant had grabbed onto the victim causing them to fall. In addition, the Applicant denied the unreported incidents of domestic violence alleged by the victim to the police[43].
May 2010
[42] Exhibit R2, S91, page 703.
[43] Transcript 22 June 2021, page 13, lines 1 to 19.
A file note from the Department of Home Affairs dated 10 March 2021, outlines the facts of a conviction the Applicant received before the Magistrates Court in May 2010 regarding the offence of assaults occasioning bodily harm, for which they were convicted and sentenced to a term of imprisonment of six months[44].
[44] Exhibit G1, G14, pages 50 and 51; and Exhibit R2, S92, page 824.
The reported facts of the charge from Queensland Police were that police were called to a domestic disturbance on an evening in late May 2010, between the Applicant and another victim. The facts refer to an incident where the victim withdrew money from a bank account the Applicant had access to and when the Applicant had returned home and questioned the victim as to why she had withdrawn the money, the victim stated to the Applicant that she did not want them to “blow it”.
The facts then go on to state that the victim asked if the Applicant was going to have a shower, to which they had replied “no”, and the victim stated she told the Applicant that she was going to sleep on the couch. Whilst the victim had got up to go to the couch, the victim stated the Applicant turned around and grabbed her by the neck with both hands causing her pain and pushed her onto the bed. The victim asked the Applicant to let her go, yet the Applicant did not. The victim stated she began kicking and scratching the Applicant’s face in an attempt to free herself.
The victim stated the Applicant had then released her and said, “Oh you want to play rough?”, to which the victim said “No”. The facts of the charge then go on to state that the Applicant had raised his fists up to the victim, with the victim stating she told the Applicant to, “Think twice before you do it, I’ll call the police”.
The Applicant proceeded to strike the victim once to the mouth causing her top lip to split in two places and splitting her gums, then forced the victim back to the bed which caused her to scream out to her daughter. It is reported the Applicant then left the bedroom and walked toward the front door shoving it with his shoulder causing it to break. The victim told police that she did not give permission for the Applicant to assault or strike her in any way, nor did she provoke the Applicant in any way, and that her retaliation was solely a means of defence.
The facts of the charge state that during an interview, the Applicant made full admissions to the police, and was issued with a notice to appear in a Magistrates Court a few days later, where as stated in earlier reasons, he was convicted of assaults occasioning bodily harm and sentenced to imprisonment for six months.
When the facts of this charge were put to the Applicant during the course of the hearing, he stated that the events as reported had occurred[45]. In submissions before the Tribunal, the Applicant states that, “I am not proud of what transpired and am very sorry, I myself received deep skratches around my eyes” [sic][46].
July 2003
[45] Transcript 22 June 2021, page 10, lines 18 to 45.
[46] Exhibit G1, G17, page 72.
A Queensland Police Service report regarding an application for a Domestic Violence Protection Order describe an incident involving the Applicant and his partner that had occurred late one evening in July 2003[47]. The report states that when police had attended an address, the Applicant had stated to police that the victim had attacked him and showed police a cut to his left ear. The report further states that witnesses had seen the Applicant dragging the victim from a vehicle behind a shop, where they witnessed the Applicant assault the victim by hitting her about the face and body.
[47] Exhibit R2, S101, pages 858 and 859.
When police came to the Applicant’s home he was observed to be, “laying on the Agg [victim] in the front yard and appeared to be assaulting her. The Agg [victim] has a bruised right eye and lacerations across her face. Agg [victim] refused to make complaint of have injuries photographed. Agg [victim] offered crisis accommodation… Resp [Applicant] was arrested on warrant following DV appln” [Tribunal insertions].
When the facts outlined in the Queensland Police Service report were put to the Applicant during the hearing, he denied that the events as reported had taken place, and offered alternative explanations, which included that he was stopping the victim from hitting him (with reference to him being questioned as to why he was laying on top of the victim in his front yard). The Applicant stated that the victim was a “pretty big girl”, and that he was stopping her from hitting him[48].
[48] Transcript 22 June 2021, page 11, lines 21 to 44.

Queensland Police Service records contain a summary of Domestic Violence Protection Orders and Conditions taken out against the Applicant. This summary contains a protection order which was made in July 2003, which had expired in July 2005, preventing the Applicant from having contact with a victim except through legal representation[49].
December 2003
[49] Exhibit R2, S91, page 701.
A Queensland Police Service Court Brief describes an incident in December 2003 involving the Applicant and a former partner. It was reported that police were called to domestic disturbance that was in progress[50].
[50] Exhibit G1, G13, page 49.
The brief reports the victim of the offending stated they had a verbal argument with the Applicant, which resulted in the Applicant hitting her over the head (although she could not recall if the Applicant had an object in his hand), this resulted in immediate pain to their head and bleeding. The victim stated that the Applicant forced her to shower to wash the blood away. The victim also stated that when they had gone outside to the front balcony of their home, the Applicant punched her with a closed fist to the left side of her head just above the ear.
The brief further reports that a witness observed the Applicant smash a glass mug over his own head. Another witness stated that they had seen the Applicant grab and pull the victim by the back of her hair. Both witnesses stated they observed the Applicant punch the victim with his right clenched fist on the left side of the victim’s head whilst they were on the balcony of the home. The brief states that police observed blood rushing from the victim’s head when they had arrived, with the Applicant pointing his finger at the victim yelling, “I WILL KILL YOU”; and yelling at the police, “SHOOT ME” repeatedly.
When the facts of this offending were put to the Applicant at the hearing, they had sought to recast the events by stating that the victim of his offending was intoxicated and had tripped whilst chasing the Applicant[51].
[51] Transcript 22 June 2021, page 9, lines 33 to 47; and page 10, lines 1 to 5.
The Tribunal observes that the Applicant appeared before a Magistrates Court in July 2004 for the offences and was convicted of one count of assaults occasioning bodily harm, in addition to a breach of a Domestic and Family Violence protection order, for which he received a fine, and default imprisonment of one month.
General violent incident in June 2002
In the evidence before the Tribunal is an incident involving the Applicant engaging in general violent offending, with one such episode in June 2002 leading to a conviction for a serious assault. The Applicant was later convicted of this incident in separate sentencing episodes in July 2003 and March 2004.
During cross-examination, the Applicant was taken to the Queensland Police Service Court Brief which described the incident. It stated that the Applicant approached a male patron at a hotel and said, “This is for [name redacted]”, then punched the patron in the nose and mouth area with their right fist, causing them to suffer a nose bleed and cut to their lip[52].
[52] Exhibit G1, G12, page 47.
Following this, the Court Brief states that after police were called the Applicant had agreed to accompany police officers to the local station. However, they subsequently resisted being placed into the back of the police vehicle, and police officers struggled to detain the Applicant. In the struggle, the Applicant tore one of the police officers jumpers and held a police constable close to them, reached over and grabbed hold of their firearm with their left hand. A security guard from the hotel stepped in to assist the police in removing the Applicant’s hand from the police officer’s firearm. The Court Brief states that following this, a police officer deployed oleoresin capsicum spray towards the Applicant. However, the Applicant hit the police officer’s hand and forced the spray can away from him and towards the other police officer present, who received the spray to their face. The Applicant was eventually handcuffed and taken away.
The Applicant’s criminal offending record indicates that they were charged with serious assault and obstruct police officer. The Applicant appeared before the Magistrates Court in July 2003 and was convicted and fined for the offence of obstruct police officer. With respect to the serious assault, the Applicant appeared before the District Court in March 2004 and was convicted and sentenced to nine months imprisonment, to be served by way of an intensive correction order[53].
[53] Exhibit G1, G7, page 35.
At the hearing, the Applicant did not recall the incident and had thought the charges against him had been dropped, consistent with his written submissions[54].
Applicant’s driving record
[54] Transcript 22 June 2021, page 9, lines 9 to 27; Exhibit G1, G17, page 72.
Whilst not fully ventilated at the hearing, evidence before the Tribunal indicates the Applicant has had numerous penalties as a result of offences whilst driving, including two instances of driving with a blood alcohol content greater than the legal limit (in August 2008 and February 2002). Additionally, the Tribunal observes that the Applicant’s licence has been suspended on 16 occasions, and the Applicant has been disqualified from driving on six occasions over the period of July 2003 to April 2021[55].
[55] Exhibit R2, S101, pages 867 to 877.
The nature and seriousness of the Applicant’s conduct
Upon a holistic review of the Applicant’s criminal offending record and other conduct, the Tribunal is of the view that the following considerations have application with respect to the nature and seriousness of the Applicant’s conduct, when applying paragraph 8.1.1(1) of the Direction: sub-paragraphs (a)(i), (ii), and (iii); (b)(ii); (c); (d); and (e).
Sub-paragraph (a)(i), (ii), and (iii) of paragraph 8.1.1(1) of the Direction requires that decision makers must have regard to (without limiting the range of conduct), the following types of crimes or conduct that are viewed very seriously by the Australian Government and the Australian community, these are:
(i)Violent and/or sexual crimes;
(ii)Crimes of a violent nature against women or children, regardless of the sentence imposed; and
(iii)Acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed.
The Tribunal is of the view that there is a recurring theme of violence throughout much of the Applicant’s offending history. This recurring theme of violence has been committed in varying contexts, whether that be in a domestic or family setting; in a more general setting; with it even being present in the Applicant’s serious offending of trafficking dangerous drugs. With respect to the trafficking dangerous drugs, the Tribunal refers to the sentencing Judge, where His Honour stated, “Whilst it is not alleged that you actually carried out any offences of violence in doing so, there is no doubt that you participated in threats to extract the outstanding debts by way of violence”[56].
[56] Exhibit G1, G8, pages 38 and 39.
Relevant to the consideration of sub-paragraph 8.1.1(1)(a)(i) of the Direction, in earlier reasons the Tribunal referred to a very serious violent incident involving the Applicant, where he had assaulted a victim at a hotel, resulting in the victim suffering a nose bleed and cut to their lip, for which the Applicant was convicted of serious assault before a District Court in March 2004, and sentenced to nine months imprisonment served by way of an intensive correction order.
With respect to the application of sub-paragraph 8.1.1(1)(a)(ii) of the Direction, the Tribunal has outlined the Applicant’s history of very serious offending for which he has been convicted, in addition to further reported conduct, which has occurred in a domestic context.
One of these incidents referred to in earlier reasons was a violent incident against a former partner of the Applicant, which led to him being sentenced to six months imprisonment for his conviction of assaults occasioning bodily harm. The Applicant admitted they had struck their former partner once to the mouth causing her top lip to split in two places and splitting her gums, in addition to other intimidating behaviour they exhibited during this incident.
With respect to the application of sub-paragraph 8.1.1(1)(a)(iii) of the Direction, the Tribunal has outlined multiple incidents of domestic violence contained in reports from the Queensland Police Service, many of which resulted in protection orders being taken out against the Applicant. Whilst the Tribunal acknowledges that the Applicant was not charged for many of these reported incidents of domestic violence, sub-paragraph 8.1.1(1)(a)(iii) of the Direction states that where there is evidence of, “acts of family violence”, this is taken into account, “regardless of whether there is a conviction for an offence or a sentence imposed”.
Many of these reports by the Queensland Police Service (outlined by the Tribunal in earlier reasons) refer to incidents involving the Applicant where victims have stated to police attending these incidents that the Applicant has acted violently towards them, for example by having struck them, kicked them, dragged them by their leg across the ground, threatened them verbally that he would kill them, having threatened them with a gun held to their head, intimidated them, and restrained them by laying on them.
The Tribunal observes there are (1) multiple protection orders against the Applicant from numerous partners; (2) there are many reported incidents in Queensland Police records of violent incidents involving the Applicant over a lengthy period of time involving multiple partners (on the Applicant’s own admission); and (3) some of these reported incidents resulted in convictions. There is no doubt in the Tribunal’s mind that the nature of the Applicant’s conduct is indeed very serious.
The Applicant’s offending conduct has on multiple occasions inflicted injuries on victims through his acts of violence. The Tribunal is of the view that the application of sub‑paragraphs 8.1.1(1)(a) (i), (ii), and (iii) of the Direction necessitates a finding such that the nature and seriousness of the Applicant’s conduct is considered very serious.
Sub-paragraph (b)(ii) of paragraph 8.1.1(1) the Direction requires decision makers to consider the types of crimes or conduct committed by the non-citizen, without limiting the range of conduct that may be considered serious. Relevant to the present application sub‑paragraph 8.1.1(1)(b)(ii) states, “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives of officials due to the position they hold, or in the performance of their duties”.
Relevant to this consideration is the incident the Tribunal referred to in earlier reasons, whereby the Applicant was convicted of obstruct police officer during his arrest in June 2002, resulting in a police officer having their jumper torn, and oleoresin capsicum spray being directed into an attending police officer’s face owing to the Applicant’s conduct. The Tribunal observes that when the Applicant was sentenced he received a fine, with default imprisonment of four days.
The Tribunal is of the view that the Applicant’s offending has enlivened the application of sub-paragraph (b)(ii) of paragraph 8.1.1(1) of the Direction, and finds the Applicant’s offending towards the police officers who were doing their job to be of a serious nature.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the sentence imposed by the courts for a crime or crimes with the exception of the crimes or conduct mentioned in sub-paragraph 8.1.1(1)(a)(ii) and (iii).
The Tribunal accepts that the Applicant’s offending commenced some time following their arrival in Australia, with the Applicant’s first entry in their criminal history occurring four and half years following their arrival in July 1987.
The Tribunal observes that the Applicant has appeared before lawful authority on 21 occasions over a 28 year period (February 1992 to March 2020), for 34 offences, four of which carried sentences of imprisonment.
Prior to receiving sentences of imprisonment for their criminal offending, the Applicant had benefited from numerous non-custodial sentences including multiple no conviction recorded notations, fines, probation, and community service. The Tribunal observes that the Applicant had even been ordered by the Courts to undergo psychological examination and any necessary medical treatment to address the factors causing them to offend.
Sentences involving imprisonment are normally the final resort in the sentencing hierarchy. The sentence of five years imprisonment received by the Applicant for their two counts of trafficking dangerous drugs is significant and reflects the objectively serious nature of the Applicant’s offending. The Tribunal observes the sentencing Judge’s characterisation of the Applicant’s involvement in these offences as, “… assisting in the trafficking in dangerous drugs at a substantial level… over a considerable period of time”[57]. The Tribunal notes the Applicant’s co-operation and guilty plea resulted in a custodial sentence that was greatly reduced.
[57] Exhibit G1, G8, page 38.
The Applicant has resided in Australia for approximately 34 years, and their criminal offending conduct has resulted in a sentencing regime representing around a fifth of the time he has spent residing in Australia (including the time he has spent incarcerated).
The Tribunal regards the Applicant’s offending conduct extremely seriously with respect to his convictions of trafficking dangerous drugs, namely methylamphetamines as well as heroin. The criminal supply of these drugs is particularly corrosive to the fabric of the community. State, Territory and Commonwealth Governments all recognise the severity of the harm such trafficking causes, with strong measures taken through legislation and significant resources directed at police and relevant government agencies to try and reduce this activity across the country.
The Tribunal is of the view that sub-paragraph (c) of paragraph 8.1.1(1) of the Direction is engaged with respect to the Applicant’s criminal conduct, and the custodial sentence imposed by the Court on the Applicant reflects the extremely serious nature of the Applicant’s offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
The Tribunal has detailed the Applicant’s criminal offending history in the earlier reasons of this decision. The Tribunal observes that the first entries in the Applicant’s criminal history occurred in 1992, when the Applicant was 28 years of age, and the last entry occurring in March 2020, when the Applicant was 56 years of age, with a criminal history in Australia spanning 28 years.
The Tribunal accepts that there have been breaks in the Applicant’s criminal history (between 1992 to 2002; 2004 to 2010; and 2010 to 2015)[58]; however, the Tribunal observes that protection orders were put in place against the Applicant during some of these periods (in addition to reported incidents of domestic violence). It is evident upon reflection of the Applicant’s criminal history that his offending increased in its frequency from 2015 onwards, coinciding with his personal substance abuse issues which he states worsened from approximately 2014.
[58] Exhibit G1, G47, pages 33 to 36.
Of the 21 appearances the Applicant made before lawful authority over a 34 year period, 13 (or approximately 60%) of these appearances occurred from 2015 to 2020. From 2015 onwards, it is evident the Applicant’s offending had increased in its frequency with the Applicant amassing numerous drug use related convictions, to property related convictions, breaches of bail, and of course, culminating most seriously in trafficking in dangerous drugs, for which they were convicted in 2020.
The Tribunal is of the view that the Applicant’s offending conduct has been objectively serious throughout its span. In the Tribunal’s view, this is supported by the violent incidents recorded in the earlier offending of the Applicant regarding incidents of domestic violence and reported incidents of domestic violence, as well as assaults in 2002, 2003, and 2010.
The Tribunal is of the view the Applicant’s criminal offending conduct became more frequent, and reflected a sustained level of seriousness, and therefore warrants the application of sub-paragraph 8.1.1(1)(d) of the Direction. The Tribunal finds that the nature and seriousness of the Applicant’s conduct ought be considered extremely serious.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the cumulative effect of repeated offending of the non-citizen.
An overview of the Applicant’s criminal offending shows that it started out with less serious offences such as drunk in a public place, and behave in a disorderly manner. It later evolved to include convictions for assaults, assaults occasioning bodily harm (committed in the context of domestic violence), drug use related offences, and most significantly culminating in trafficking in dangerous drugs.
A significant amount of community resources have been required to bring the Applicant to account for his offending conduct, in addition to the impact the Applicant’s offending has had on the community and his victims; particularly with respect to his convictions regarding trafficking in dangerous drugs.
As stated in earlier reasons, the Applicant did not heed warnings from non-custodial sentences he had received for his earlier criminal conduct, as he did not seek to moderate his conduct or address the factors causing him to offend.
The Tribunal views the cumulative effect of the Applicant’s criminal conduct enlivens the application of sub-paragraph 8.1.1(1)(e) of the Direction, such that the nature and seriousness of the of the Applicant’s offending conduct is considered very serious.
Having regard to all of the evidence and submissions made to the Tribunal, as they apply to the relevant sub-paragraphs 8.1.1(1)(a)(i), (ii), and (iii); (b)(ii); (c); (d) and (e) of the Direction. The Tribunal is of the view that overall, the Applicant’s conduct can be characterised as extremely serious. In the Tribunal’s mind, the determinative factor as to the overall characterisation of the Applicant’s offending conduct has been the significant custodial sentence the Applicant received for trafficking dangerous drugs.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Relevant to the present application, paragraph 8.1.2(2) of the Direction requires a decision maker to consider the following factors on a cumulative basis when considering the risk to the Australian community:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)Information and evidence on the risk of the non-citizen re-offending; and
(ii)Evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct
The Tribunal has had regard to the limited submissions of the Applicant with respect to his criminal conduct, and whilst the Tribunal accepts that he has expressed remorse for some of his offending; the Tribunal is of the view that if the Applicant were to engage in further criminal or other serious conduct, the nature of the harm that would result from such conduct on individuals and the broader Australian community is unacceptable.

As stated in earlier reasons, there is a recurring theme of violence throughout much of the Applicant’s offending, and most concerningly to the Tribunal, this has occurred on numerous occasions with multiple partners in a domestic setting. The Applicant admitted during the course of the hearing they had been the subject of protection orders taken out against them to protect multiple victims who are former partners of the Applicant[59]. The Tribunal observes that there is a protection order currently in place against the Applicant[60].
[59] Transcript 22 June, page 13, lines 23 to 31; page 15, lines 19 to 47.
[60] Exhibit R2, S91, page 700.
The Tribunal again restates the sentencing remarks of His Honour in the Supreme Court in February 2020 with respect to the two convictions the Applicant received for trafficking in dangerous drugs where it was noted the Applicant had participated in violent threats, their Honour stated, “Whilst it is not alleged that you actually carried out any offences of violence in doing so, there is no doubt that you participated in threats to extract the outstanding debts by way of violence”[61].
[61] Exhibit G1, G8, pages 38 and 39.
The Applicant has been convicted of serious assault, assaults occasioning bodily harm, and occasioning bodily harm; with two of these convictions resulting in sentences of imprisonment. There is no doubt in the Tribunal’s mind that if the Applicant were to engage in further criminal or other serious conduct, there is a potential risk of the Applicant committing further violent offences against victims (in particular, future partners of the Applicant) which could result in physical and or psychological harm.
An additional consideration with respect to the harm which may be caused if the Applicant were to engage in further criminal or other serious conduct can be observed from the impact that the trafficking of dangerous drugs such as methamphetamines/methylamphetamines has on individuals and the community.
The Tribunal observes the myriad of problems arising from the trafficking of dangerous drugs with respect to:
(i)the link between the use of these drugs and induced psychosis in individuals which can lead to the commission of violent crimes;
(ii)the highly addictive nature of the dangerous drug which fuels related crimes such as property offending as individuals turn to this to fund their addictions;
(iii)the general harm to the community caused by the trade of such drugs when community resources are required to intervene including policing, emergency services, and hospitals; and
(iv)the resulting economic impact flowing from the trade of such drugs which diverts resources within the economy.
The Tribunal has had regard to paragraph 8.1.2(1) of the Direction which states that decision makers should be guided by the following principle in relation to the harm that would be caused if the criminal offending or other conduct of the Applicant were to be repeated:
“… 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.”
[Tribunal underline for emphasis]
The Tribunal is of the view that the harm that could be caused by the Applicant should their past conduct be repeated, is so serious that any risk it may be repeated is unacceptable.
The likelihood of the Applicant engaging in further criminal or other serious conduct
When assessing the likelihood of the Applicant engaging in further criminal or other serious conduct, a relevant consideration is the extent to which the Applicant’s substance abuse issues have plagued them during their life. It is evident in the Tribunal’s view that from 2015 much of the Applicant’s criminal offending has coincided with drug addiction issues. During the course of the hearing, the Tribunal sought to ascertain from the Applicant the extent of their drug addictions over the course of their life.
The Tribunal observes that the Applicant stated they had been addicted to heroin in their early 20s for approximately two years, and it took them several years to wean themselves from this. The Applicant stated that when they had migrated to Australia in 1987 (at 24 years of age), they were clean from drugs[62].
[62] Transcript 22 June 2021, page 22, lines 41 and 42.
The Applicant admitted to having problems when consuming alcohol, that it made him violent, and that his consumption of alcohol could be linked to a couple of his offending episodes, with the Applicant stating they had given up alcohol in 2011[63].
[63] Transcript 22 June 2021, page 16, line 31.
The Applicant stated that their addiction to methamphetamines commenced from approximately 2014/2015 onwards (when the Applicant was in their early 50s). The Applicant stated they had turned to this drug in order to treat pain which was occurring in their leg[64]. However, since being taken into criminal custody (a controlled environment) from February 2020 the Applicant claims he has been clean from prohibited drug use[65]. It is evident when reflecting on the Applicant’s criminal history that his drug use has been a contributing factor.
[64] Transcript 22 June 2021, page 23, lines 4 to 6.
[65] Transcript 22 June 2021, page 23, lines 18 to 25.
The Tribunal observes that in assessing the likelihood of the Applicant engaging in further criminal or other serious conduct, there is no certainty that his abstinence from prohibited drug use would persist should the Applicant be returned to the Australian community (in an uncontrolled environment). Further, there is a lack of independent evidence from a suitably qualified clinician verifying the Applicant’s claims with respect to their ability to remain drug free in an uncontrolled environment.
The Tribunal refers to the sentencing remarks of their Honour in the Supreme Court in February 2020 with respect to the prospect of the Applicant’s rehabilitation[66]:
“… You are not young. You do have a relevant past criminal history. The offences for drugs, however, all were committed around the time of the trafficking counts, and in circumstances where those are your first convictions for drugs.
That is consistent with a person who has developed an addiction or dependency upon drugs much later in life. That fact causes me to be satisfied that there are some prospects of rehabilitation.
It cannot be said that those prospects are good. You have been given the benefit of parole in the past. You have been given the benefit of probation. You were subject to a probation order at the time you committed the second trafficking count. That does not auger well from the point of view of rehabilitation.
[66] Exhibit G1, G87, page 39.
However, it cannot be said that you do not have prospects of rehabilitation. Accordingly, I do intend to frame the sentence to allow for those prospects…”
The Tribunal has given consideration to the age of the Applicant, and the remorse the Applicant has expressed for their trafficking in dangerous drugs, in addition to Applicant’s co-operation with police. Whilst these factors are positive with respect to the Applicant’s prospects of rehabilitation, the Tribunal is of the view that there is still a real risk of the Applicant re-offending given the unresolved nature of the factors causing the Applicant to offend.
It is evident that throughout much of the Applicant’s violent offending, his anger has been an issue, and in the Tribunal’s view, very few meaningful steps have been taken by the Applicant to address their issues with respect to their emotional regulation (particularly in a domestic context).
The Tribunal heard evidence from the Applicant that they had attended an anger management course when they were not in criminal custody, which went for approximately three weeks to one month, with a couple of sessions per week[67]. The Tribunal gives the Applicant’s submissions in this regard little weight in circumstances where their submissions are not corroborated with independent evidence.
[67] Transcript 22 June 2021, page 19, lines 38 to 46; page 20, lines 1 to 10.
The Tribunal is of the view that there are likely unresolved issues with respect to the Applicant’s emotional regulation. The Tribunal observes that there are still protections orders are in place restricting the Applicant’s contact with named person’s which are due to expire in February 2023[68]; and this is further evidenced in sentencing remarks threats with respect to his trafficking in dangerous drugs where His Honour stated that the Applicant had participated in violent threats[69].
[68] Exhibit R2, S91, page 700.
[69] Exhibit G1, G8, pages 38 and 39.
Queensland Corrective Services assessed the rehabilitation needs of the Applicant in a report from March 2020, which stated the Applicant[70]:
“… has been identified with rehabilitation needs in the areas of employment, education, substance abuse, pro-social friends, health, pro-criminal attitudes and use of time”.
[70] Exhibit R2, S51, page 341.
During the course of the hearing, the Applicant said they had not proceeded with any rehabilitation efforts whilst incarcerated as courses were not available to him, and he had stopped applying to participate as much as he had in the past due to unavailability[71].
[71] Transcript 22 June 2021, page 18 lines 21 to 34 page 21, lines 4 to 34.
Be that as it may, the Tribunal is required by the Direction to assess the likelihood of the Applicant engaging in further criminal or other serious conduct at the time of this decision, observing that decisions “should not be delayed in order for rehabilitative courses to be undertaken”[72]. In this respect, the Applicant gave evidence to the Tribunal that they were waiting to be released from criminal custody to participate in rehabilitative courses, the Tribunal refers to the following exchange[73]:
“Respondent:            What about - well, when you’re released from prison in Australia, when that happens, if you were to stay in Australia, what challenges do you think you might face being released from prison?---
Applicant:                 Well, I wanted to do the drug rehab course, whether I’m clean or not. It’s an easy step back into, if you know what I mean. Getting a job, like I’ve got a registered business, my own business, so it’s easy enough for me - I might not be able to the work myself, but I’ll be able to stand up and (indistinct) and get other people to run it for me. Yes, but first things first, I’ve got to do the drug rehab thing because there’s no point in me saying I can come in here and not touch drugs and now I’m all good, I have to go and see someone that’s going to tell me why - what the triggers are that set me off, you know.
Senior Member:        Sorry, PCNY, so your evidence is that upon your release from prison your first order of priority is to attend drug rehabilitation, is that right?---
Applicant:                 Yes.”
[72] Direction, sub-paragraph 8.1.2(2)(b)(ii).
[73] Transcript, 22 June 2021, page 27, lines 18 to 32.
The Tribunal is of the view that most concerningly the Applicant on his own admission acknowledged that he fails to understand the “triggers” which have caused him to offend. The Tribunal finds this concerning as it confirms the Applicant has a lack of understanding with respect to their behaviour, what causes them to offend and the impact of their offending. The Tribunal refers to the following exchange from cross-examination of the Applicant[74]:
“Senior Member:      Okay. You just mentioned then that you would like to understand what your triggers are, with respect to your drug use, is that right?---
Applicant:                 Yes.
Senior Member:        Is that because you, at the present, don’t understand what they are?---
Applicant:                Yes.”
[74] Transcript, 22 June 2021, page 27, lines 34 to 37.
In assessing the risk the Applicant poses with respect to their recidivism, the Tribunal considered the report from Queensland Corrective Services from March 2020[75]. The assessor in the report noted that the Applicant was assessed as a “a low risk of general offending”, with a RoR-PPV score of four which is considered low; however the assessor was also of the view that the Applicant poses, “… a high risk of reoffending in the community”[76].
[75] In accordance with sub-paragraph 8.1.2(2)(b)(i) of the Direction.
[76] Exhibit R2, S52, pages 343 to 346; the Direction, sub-paragraph 8.1.2(2)(b)(i).
The Tribunal is of the view, after considering the evidence before it and the submissions of the Applicant, that there is a significant likelihood of the Applicant re-offending due to the incomplete nature of the Applicant’s rehabilitation.
133.The Tribunal notes that sub-paragraph 8.1.2(2)(c) of the Direction is not relevant to the circumstances of the Applicant.
Conclusion: Primary Consideration 1
The Tribunal has had regard to the provisions of paragraphs 8.1.1, and 8.1.2 of the Direction, as well as the principles outlined in paragraph 5.2. The Tribunal finds:
(i)the nature and seriousness of the Applicant’s offending is overall viewed extremely seriously;
(ii)if the Applicant were to engage in further criminal or other serious conduct, there is a potential risk of the Applicant committing further violent offences against victims (in particular, future partners of the Applicant) which could result in physical and or psychological harm, and that this assessed risk (in the Tribunal’s view), is unacceptable in terms of its potential impact on individuals and the broader Australian community; and
(iii)there is a significant likelihood of the Applicant re-offending due to the incomplete nature of the Applicant’s rehabilitation.
In consideration of all the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration 1 weighs very heavily in favour of non-revocation.
Primary Consideration 2: Family violence committed by the Applicant
Sub-paragraph 8.2(1) of the Direction requires decision makers to consider acts of family violence committed by the Applicant, and stipulates that the Government’s 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”.
Sub-paragraph 8.2(2) of the Direction requires decision makers to give consideration to the Applicant’s circumstances where the Applicant:
(a)has been convicted of an offence, found guilty of an offence, or had charges proven however so 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 s501 or s501CA (of the Migration Act) has been afforded procedural fairness.
Sub-paragraph 8.2(3) of the Direction outlines a series of factors which decision makers must consider (where relevant), when considering the seriousness of the non-citizen’s conduct involving family violence. Upon a holistic review of the Applicant’s conduct, the Tribunal is of the view that sub-paragraph 8.2(3)(a), (b), (c)(i), (ii) and (iii) of the Direction have application.
Sub-paragraph 8.2(3)(a) of the Direction requires decision makers to consider the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness.
In earlier reasons, the Tribunal has outlined three convictions involving the Applicant committing acts of family violence:
(i)one conviction of assaults occasioning bodily harm in May 2010, where the Applicant appeared before the Magistrates Court in the same month and was sentenced to six months imprisonment; and
(ii)two convictions regarding offences which occurred in December 2003 relating to assaults occasioning bodily harm and a breach of a Domestic and Family Violence Protection Order, where the Applicant appeared before the Magistrates Court in July 2004, for which the Applicant was convicted and fined.
Additionally, the Tribunal has outlined multiple instances of the Applicant’s involvement in domestic disputes which are contained in reports by the Queensland Police Service. The Tribunal considers these reports to be an independent and authoritative source and is satisfied the Applicant has been afforded procedural fairness with respect to having being given an opportunity to respond[77].
[77] Direction, sub-paragraph 8.2(2)(b); and Tribunal Direction dated 27 April 2021.
The Applicant’s oral submissions before the Tribunal confirmed that the protection orders relate to different partners.
The evidence before the Tribunal indicates that the Applicant has been the named subject of at least six protection orders taken out against him, preventing the Applicant from having further contact with the aggrieved parties. The Tribunal notes that some of these orders state that the Applicant must not commit acts of domestic violence, in addition to prohibiting the Applicant from locating or attempting to locate the aggrieved parties, as well as prohibiting the Applicant from possessing a weapon[78].
[78] Exhibit R2, S91, pages 700 to 704.
With respect to the frequency of the Applicant’s conduct, the Tribunal has observed in earlier reasons that the Applicant’s offending conduct has occurred on a fairly consistent basis over the years (2003, 2010, 2015, and 2017)[79].
[79] Exhibit G1, G13, page 49; Exhibit G1, G14, 50 and 51; and Exhibit R2, S92, page 824; Exhibit R2, S101,
page 859; Exhibit R2, S96, pages 833 and 834; Exhibit R2, S93, pages 826 and 827.
The Tribunal regards the Applicant’s conduct as consistently very serious throughout his offending history with respect to his involvement in acts of family violence. The Tribunal has observed in earlier reasons that most of the reported incidents (including incidents where the Applicant has been convicted), refer to similar patterns of violent behaviour involving the Applicant. For example, where the Applicant has struck or kicked victims, threatened them verbally and or intimidated them.
Sub-paragraph 8.2(3)(b) of the Direction requires decision makers to consider the cumulative effect of repeated acts of family violence.
As stated by the Tribunal in these reasons there are at least six protection orders which have been taken out against the Applicant, with multiple instances of reported domestic violence having occurred over a considerable period of time, including multiple convictions involving the Applicant, with sentences resulting in his imprisonment.
The Tribunal considers that the Applicant’s very serious offending has indeed had a cumulative effect, particularly when one considers the community resourcing required to bring the Applicant to account for his actions, and the impact his offending has had on the community and his victims.
Sub-paragraph 8.2(3)(c)(i), (ii) and (iii) of the direction requires decision makers to consider any rehabilitation achieved at the 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); and
(iii)efforts to address factors which contributed to their conduct.
The Tribunal is of the view that with respect to the Applicant’s very serious conduct involving family violence, he has really only acknowledged one incident where he has claimed responsibility for his actions, and that was with respect to the incident that occurred in May 2010 with his former girlfriend at the time. The Applicant has submitted to the Tribunal that he was “not proud of what transpired and am very sorry..” [80].
[80] Exhibit G1, G17, page 72.

In circumstances where the Applicant has re-offended despite being the named respondent in multiple protection orders over a number of years involving numerous persons in need of protection from the Applicant (including having been convicted of breaching protection orders); the Tribunal is of the view that the remorse the Applicant has expressed (for the one incident in 2010), is diminished when his family violence related offending history is considered holistically[81].
[81] Exhibit G1, G7, page 35 (December 2003).
The Tribunal is of the view the Applicant did not acknowledge that there was a pattern of behaviour in his relationships where he resorted to violent behaviour, and does not consider the Applicant to have an understanding of the impact of their behaviour on the victims of their offending.
The Tribunal is of the view that the Applicant has made limited rehabilitation efforts in order to address the factors which have caused him to very seriously offend with respect to his history involving family violence.
Conclusion: Primary Consideration 2
Having regard to all of the evidence and submissions made to the Tribunal, which are outlined in these reasons with reference to sub-paragraphs 8.2(3)(a), (b), (c)(i), (ii) and (iii) of the Direction, the Tribunal is of the view that the Applicant’s conduct can only be characterised as very serious with respect to the acts of family violence committed by the Applicant. The Tribunal finds that Primary Consideration 2 weighs heavily in favour of non-revocation.
Primary Consideration 3: The best interests of minor children in Australia
Sub-paragraph 8.3(1) of the Direction requires a decision maker to determine whether non‑revocation is or is not in the best interests of a child who may be affected by the non‑revocation of the decision to cancel the Applicant’s Visa.
Sub-paragraph 8.3(2) of the Direction provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.
Additionally, sub-paragraph 8.3(3) of the Direction provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Sub-paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned minor child (or children), which the Tribunal will in turn consider as it applies to the best interests of each relevant child of the Applicant.
The Tribunal notes that the Applicant’s daughter is an adult and is therefore not a relevant consideration with respect to the application of Primary Consideration 3[82].
[82] Exhibit G1, 16, pages 61 to 63.
Conclusion: Primary Consideration 3
The Tribunal is of the view that Primary Consideration 3 of the Determination is not relevant to the factual circumstances of the Applicant. This consideration is of neutral weight, and not determinative of any finding.
Primary Consideration 4: The Expectations of the Australian community
Paragraph 8.4(1) of the Direction states that the Australian community expects non-citizens to obey Australian laws whilst in Australia, and where non-citizens have 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.
Paragraph 8.4(2) of the Direction states that the non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns of offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community[83]).
[83] Sub-paragraph 8.4(3) of the Direction.
Paragraph 8.4(2) of the Direction further states that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas if they raise character concerns through conduct in Australia or elsewhere (regardless of whether the non-citizen poses a measurable risk of causing physical harm[84]), such as:
[84] The Direction, paragraph 8.4(3).
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(4) of the Direction states that 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 within the relevant sub-paragraphs of the Direction, without independently assessing the community's expectations in the particular case.
With respect to the application of sub-paragraph 8.4(1) of the Direction, the Tribunal observes the Applicant has resided in Australia for a considerable period of time, whom commenced their criminal conduct some years following their decision to reside in Australia in the mid-1980s.
The Applicant has most certainly not obeyed Australian laws whilst he has resided here (evidenced by his 21 appearances before lawful authority, resulting in numerous convictions). During this time, the Applicant has failed to demonstrate respect for the important institutions within this country (evidenced by his numerous convictions for breaching bail conditions granted by the Courts, and convictions with respect to his conduct towards police officers). And more generally, the Applicant’s violent conduct in a domestic or family setting is abhorred by the Australian community.
The Tribunal is of the view that the Applicant’s criminal offending is extremely serious offending with respect to their trafficking dangerous drugs, and the Australian community would reasonably expect that he should not hold a visa.
Whilst the Tribunal accepts that the Applicant assisted the police, and pleaded guilty to his offending saving further costs to the community; the Tribunal is of the view that given the significant harm resulting from the use and trade of methamphetamines/ methylamphetamines in the community, this offending conduct is taken extremely seriously.
In circumstances where (1) the Applicant’s conduct has involved the commission of very serious and extremely serious offences over a considerable period of time; (2) his offending conduct has caused harm to his victims and the community more broadly; and (3) the considerable cost in holding the Applicant to account for his actions: the Tribunal is of the view that the Australian community would expect the non-revocation of the cancellation of the Applicant’s Visa.
The Tribunal makes this finding not withstanding the length of time the Applicant has resided in Australia.
In this regard, the Tribunal notes that the principle in sub-paragraph 5.2(3) of the Direction is applicable. The principle stipulates that, “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…”.
Conclusion: Primary Consideration 4
The Tribunal is of the view that upon a holistic view of the evidence before it, Primary Consideration 4 of the Determination is of a very heavy weight in favour of affirming the non-revocation decision under review.
Other Considerations
It is necessary for the Tribunal to look at the Other Considerations listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four stipulated sub-paragraphs 9.1 to 9.4 of the Direction.
International non-refoulement obligations
Paragraph 9.1 of the Direction directs decision makers to consider international non‑refoulement obligations.
The Tribunal has had regard to the requirements of paragraph 9.1 of the Direction, that the receiving country of the Applicant is New Zealand, as well the Applicant’s submissions within their Personal Circumstances Form to the Respondent[85]. The Tribunal is satisfied that Australia’s non-refoulement obligations are not engaged in relation to the Applicant.
[85] Exhibit G1, G16, page 69.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs decision makers to take into account 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.
177.The Applicant is presently 58 years of age and has not declared any issues with respect to their health in their Personal Circumstances Form to the Respondent[86]. The Tribunal observes that there is reference in the evidence before the Tribunal within Queensland Correctional Services documents that the Applicant has claimed that they were diagnosed with cancer in November 2018[87].
[86] Exhibit G1, G16, page 68.
[87] Exhibit R2, S62, page 372.
When the Applicant was questioned during the course of the hearing as to whether or not they had been diagnosed with cancer, it became evident that he had thought he may have had cancer but did not follow up a doctors appointment after claiming to have been tested[88].
[88] Transcript 22 June 2021, page 24, lines 24 to 45; page 25, lines 1 to 18.
The Tribunal gives the Applicant’s evidence little weight in the absence of corroborating medical evidence, and makes the observation that should the Applicant be deported to New Zealand, they would have similar access to comparable health care to that which is available in Australia. Additionally, he would also have comparable support for rehabilitation services should he wish to pursue these.
On to this point, the Tribunal refers to the decision of Tera Euna and Minister for Immigration and Border Protection[89], where Senior Member Kelly stated the following:
[89] [2016] AATA 301 [at 101].
“New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand... New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.”
In the Tribunal’s view, should the Applicant be deported to New Zealand they would not face any linguistic, economic or cultural barriers as the Applicant resided in New Zealand for the first part of their life. The Tribunal does accept the Applicant may face emotional and economic hardships should they be deported, but the Tribunal tempers this observation with the fact that these would likely be temporary until such time as the Applicant has had an opportunity to establish himself.
With respect to the extent of any impediments a non-citizen may face if removed from Australia to New Zealand, it is the Tribunal’s view that paragraph 9.2 of the Direction is of a slight weight in favour of revocation. However, the Tribunal is of the view that the weight of this factor does not outweigh the very heavy and determinative weight the Tribunal has found when combining Primary Consideration 1, and Primary Consideration 4 of these reasons.
Impact on victims
Paragraph 9.3 of the Direction requires decision makers to take into account the impact of the decision not to revoke the Applicant’s visa pursuant to s501CA of the Migration Act, 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
In the absence of any evidence submitted to the Tribunal for consideration with respect to the Applicant’s impact on their victims from their offending, the Tribunal cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s Visa and is neutral[90].
[90] Chung and Minister for Immigration and Border Protection (Migration) [2017] AATA 895, [at 88]; TBNM and
Links to the Australian community
Paragraph 9.4 of the Direction states that decision makers must have regard to sub‑paragraphs 9.4.1 and 9.4.2 of the Direction, which consider the strength, nature and duration of ties of the Applicant to Australia, and any impact on Australian business interests.
Strength, nature and duration of ties to Australia
Sub-paragraph 9.4.1(1) of the Direction requires decision makers to 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.
With respect to the application of sub-paragraph 9.4.1(1) of the Direction to the circumstances of the Applicant, the Tribunal has in earlier reasons observed that there are very limited submissions from the Applicant, and no submissions were received from individuals in support of the Applicant remaining in Australia.
The Applicant made submissions that he had recently come back into contact with his adult daughter. Under further questioning by the Tribunal it became apparent that the last contact the Applicant had with his daughter was two months prior to his incarceration in February 2020[91]. This aside, the Tribunal is of the view that should the Applicant be allowed to remain in Australia, there is the possibility for him to resume a relationship with his adult daughter.
[91] Exhibit G1, G16, page 62; and Transcript 22 June 2021, page 27, lines 44 to 47; page 28, lines 1 to 18.
Other than the Applicant’s daughter, he stated to the Tribunal that he has three sisters who reside in Australia[92].
[92] Transcript 22 June 2021, page 25, lines 41 to 46.
The Tribunal accepts that of the Applicant’s family who have a right to remain in Australia indefinitely, they would suffer emotional hardship should the Applicant be permanently removed from Australia.
The Tribunal has regard to the impact of the decision regarding deportation of the Applicant with respect to their immediate family members in Australia and is of the view that the application of sub-paragraph 9.4.1(1) of the Direction weighs moderately in favour of the Applicant remaining in Australia.
Sub-paragraph 9.4.1(2) of the Direction requires a decision maker to give consideration to the strength, nature and duration of any other ties that the non-citizen has to the Australian community, and in doing so a decision maker must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, nothing that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
In earlier reasons, the Tribunal has referred to the fact that the Applicant moved to Australia in the mid 1980’s, with their first entries in their criminal offending record not occurring until some time later in 1992. In view of this, the Tribunal has not limited the weight that would otherwise be afforded to the Applicant as their criminal offending did not begin soon after their arrival (with respect to sub-paragraph 9.4.1(2)(a)(i) of the Direction).
The Tribunal acknowledges that the Applicant has resided in Australia for 34 years (including periods of time he has spent in criminal custody). With respect to the Applicant’s positive contributions to the Australian community there is evidence that he has largely held down gainful employment up until 2014, when he suffered a leg injury preventing him from continuing with his work, and he has since been in receipt of a disability support payment[93]. Should he be allowed to remain in Australia, the Applicant has a registered concreting business and would seek to restart that business as meaningful employment[94].
[93] Transcript 22 June 2020, page 23, lines 4 to 10.
[94] Exhibit G1, G16, page 13; G15, page 54; Transcript 22 June 2020, page 27, lines 13 to 25.
The Tribunal is of the view that a moderate measure of weight should be afforded to the Applicant in terms of applying sub-paragraph 9.4.1(2)(a)(ii) of the Direction on the basis of the Applicant’s modest contribution to the Australian community through his employment, supported to a lesser extent by his work with a local charity which he stated in his Personal Circumstances Form to the Respondent[95].
[95] Exhibit G1, G16, page 13; Transcript 22 June 2021, page 29, lines 32 to 45; page 30, lines 1 to 46.
Although the Applicant’s submissions with respect to his friends and family have been limited, in applying paragraph 9.4.1(2)(b) of the Direction, the Tribunal recognises these hold importance in the life of the Applicant, and is of the view that this attracts a moderate measure of weight in favour of the Applicant being allowed to remain in Australia.
Overall, in applying paragraph 9.4.1 of the Direction to the factual circumstances of the Applicant, the Tribunal is of the view that this Other Consideration weighs moderately in favour of revocation for the Applicant.
Whilst the Tribunal has applied a moderate measure of weight to this Other Consideration, it is by far outweighed by the combined and determinative weight the Tribunal has given to both Primary Consideration 1, and Primary Consideration 4, both of which weigh very heavily in favour of non-revocation.
Impact on Australian business interests
Paragraph 9.4.2 of the Direction requires decision makers to consider the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal has had regard to the considerations outlined in paragraph 9.4.2 of the Direction and is satisfied that an impact on Australian business interests is not relevant to the factual circumstances of the Applicant; as there is no evidence before the Tribunal that the Applicant is involved in the delivery of a major project or delivery of an important service in Australia.
Summary: Other Considerations
The application of the Other Considerations in the matter before the Tribunal can be summarised as follows:
(a)International non-refoulement obligations are not engaged in relation to the Applicant.
(b)Extent of impediments if removed, a slight measure of weight is attributable in favour of revocation of the mandatory Visa Cancellation Decision.
(c)Impact on victims is of neutral weight.
(d)Links to the Australian community:
(i)Strength, nature and duration of ties to Australia, a moderate measure of weight is attributable in favour of revocation of the mandatory Visa Cancellation Decision; and
(ii)Impact on Australian business interests is of no weight as this consideration is not relevant to the factual circumstances of the Applicant.

The Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 9 to 9.4.2 of the Direction, weigh in favour of revocation of the mandatory Visa Cancellation Decision, they are by far outweighed by the determinative and combined weight of Primary Consideration 1, and Primary Consideration 4, both of which weigh very heavily in favour of non-revocation; supported to a lesser extent by the heavy weight the Tribunal has afforded Primary Consideration 2.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
As previously outlined in these reasons, pursuant to s501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s Visa:
(i)either the Applicant must be found to pass the character test; or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
As the Tribunal has already outlined in these reasons, the Applicant does not pass the character test.
The Tribunal has had reference to the Direction and to all the evidence before it and finds that there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s Visa.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Migration Act to revoke the mandatory Visa Cancellation Decision, the Tribunal has had regard to the Primary Considerations referred to in the Direction, and makes the following findings:
(i)Primary Consideration 1 weighs very heavily in favour of non-revocation.
(ii)Primary Consideration 2 weighs heavily in favour of non-revocation.
(iii)Primary Consideration 3 is of neutral weight and is not determinative of any finding.
(iv)Primary Consideration 4 weighs very heavily in favour of non-revocation.
The Tribunal is of the view that, to the extent that any of the Other Considerations, as outlined in paragraphs 9 to 9.4.2 of the Direction, weigh in favour of revocation of the mandatory Visa Cancellation Decision, they are by far outweighed by the determinative and combined weight of Primary Consideration 1, and Primary Consideration 4, both of which weigh very heavily in favour of non-revocation. This is supported to a lesser extent by the heavy weight the Tribunal has applied to Primary Consideration 2.
It is the Tribunal’s opinion that a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s Visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s Visa.
DECISION
Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 13 April 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 210 (two hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

..............................[SGD]..........................................
Associate
Dated: 7 July 2021

Date of hearing:

22 June 2021

Applicant:

PCNY (self-represented)

Solicitor for the Respondent:

Mr Liam Dennis (Minter Ellison)

“ANNEXURE 1 – EXHIBIT REGISTER”

EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED

G1 Section 501 G-Documents (G1 to G22 pages 1 to 140) R - 30 April 2021

A1 Statement of the Applicant (undated) (one page)
(duplicated at page 14 of Exhibit G1) A - 23 April 2021

R1 Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 10) R 8 June 2021 8 June 2021

R2 Respondent’s Supplementary Documents (S1 to S103, pages 1 to 877) R - 8 June 2021

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G22 pages 1 to 140)	R	-	30 April 2021
A1	Statement of the Applicant (undated) (one page) (duplicated at page 14 of Exhibit G1)	A	-	23 April 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 10)	R	8 June 2021	8 June 2021
R2	Respondent’s Supplementary Documents (S1 to S103, pages 1 to 877)	R	-	8 June 2021

have lodged the application for review with the Tribunal within nine days after the day on which he or she
received notification of the decision, refer to s500(6B) of the Migration Act.

Minister for Home Affairs (Migration) [2019] AATA 850, [at 81].

[2021] AATA 2165

7 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Remedies

Date of hearing:	22 June 2021
Applicant:	PCNY (self-represented)
Solicitor for the Respondent:	Mr Liam Dennis (Minter Ellison)