Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 587
•17 March 2021
Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587 (17 March 2021)
Division:GENERAL DIVISION
File Number: 2020/8615
Re:TEEJAY POI-ILAOA
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date: 17 March 2021
Date of written reasons: 22 March 2021
Place:Brisbane
The reviewable decision is affirmed.
..........................[SGD]..............................................
Member R Maguire
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Khalil v Minister for Home Affairs [2019] FCAFC 151
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Stowers [2020] FCA 407
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member R Maguire
22 March 2021
Index
Introduction and background
Issues
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Ministerial Direction No. 79
Evidence
Evidence of Witnesses
Primary Consideration A – Protection of the Australian Community
Application of Factors in Paragraph 13.1.1(1) of the Direction
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Conclusion: Primary Consideration A
Primary Consideration B: The Best Interests of Minor Children in Australia
Conclusion: Primary Consideration B
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Findings: Other Considerations
Conclusion
Decision
ANNEXURE A – EXHIBIT LIST
ANNEXURE B – ORIGINAL DECISION
Introduction and background
The Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 18 December 2020[1] made pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made under subsection 501(3A) of the Act to cancel the Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa (“the visa”).
[1] Exhibit G1, Section 501 G Documents, G7 at page 29.
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (“the Regulations”) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under section 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act the person has a “substantial criminal record” as defined by section 501(7). Relevantly, section 501(7) states:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; …
The Applicant is a 21-year-old male citizen of New Zealand.[2] He spent 10 months living in Australia in 2009 before arriving on a permanent basis on 27 June 2012.[3]
[2] Exhibit R1, Respondent's Statement of Facts, Issues and Contentions (SFIC) at page 1, paragraph [5].
[3] Exhibit G1, Section 501 G documents G28 at pages 103 – 104.
On 27 November 2019, the Applicant was sentenced in the Beenleigh District Court to two years’ imprisonment to be suspended for two years after serving five months for the offences of “unlawful entry of vehicle for committing indictable offence at night used/ threatened violence whilst armed in company” and “dangerous operation of a vehicle”.[4]
[4] Exhibit G1 Section 501 G documents, G10 at pages 48 – 51.
On 23 December 2019, whilst the Applicant was serving that term of imprisonment (that is, in actual criminal custody) the Respondent, pursuant to section 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test because of the operation of section 501(6)(a) (substantial criminal record) on the basis of section 501(7)(c),[5] i.e. that he had been sentenced to 12 months or more imprisonment.
[5] Ibid, G29 at pages 105 - 111.
Notice of this decision was given to the Applicant by hand. In accordance with reg 2.52(2)(b) of the Regulations the Applicant was invited to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations[6] to the Minister on 27 December 2019 within the period and in the manner specified.
[6] Ibid, G14 at page 58 – 61.
On 23 December 2020, pursuant to section 501CA(4) the Respondent decided not to revoke the visa cancellation decision made under section 501(3A) of the Act,[7] and on 31 December 2020 the Applicant made the present application to this Tribunal for a review of that decision.[8] The Tribunal has jurisdiction to review this decision pursuant to section 500(1)(ba) of the Act.[9]
[7] Ibid, G7 at pages 25-41.
[8] Ibid, G2 at pages 3-8.
[9] The Act, section 500(6B).
The hearing of the instant application took place 3 and 4 March 2021. The Applicant appeared via video link and was represented by Ms Samuta of Samuta McComber Lawyers. Mr Kyranis of Sparke Helmore appeared for the Respondent. The Tribunal received oral evidence from the Applicant, who was in the migration zone on shore in Australia. The Tribunal also received oral evidence from the witnesses set out below. The complete suite of written material forming the exhibit record is further particularised in the Exhibit Annexure attached hereto and marked “A”.
By operation of section 500(6L)(c) of the Act, when an application is made to the Tribunal for a review of a decision under section 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1), the Tribunal is taken at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975[10] to affirm the decision under review. At the hearing, the representatives of the parties agreed that for the purposes of this review, and section 500(6L)(c), the 84th day is Wednesday 17 March 2021. It is therefore open to the Tribunal to make a decision prior to midnight on that date.
[10] (Cth).
Following the 9hearing of this matter, the Member formed the view that the most thorough review of the evidence and the most detailed written reasons could not be safely provided in time to meet the 84-day deadline. Based on the Tribunal’s intention to consider the material as fulsomely as possible and to deliver an appropriately detailed decision, the Tribunal published its Decision in this application pursuant to section 43(1) of the AAT Act on Wednesday 17 March 2021. In so doing, the Tribunal also met the requirements of section 500(6L)(c) of the Act. Attached to these Reasons and marked “Annexure B” is a true and correct copy of that Decision.
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”), the Tribunal now publishes the written Reasons to the parties. In Khalil, the Full Federal Court said:
“41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271-273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”
[Tribunal’s underlining]
Issues
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
4The 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.
It is not disputed that the Applicant has made the representations required by section 501CA(4)(a) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; or
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the cancellation of the Applicant’s visa should be revoked.
In considering section 501CA(4), it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[11]
…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…[12]
[11] [2018] FCAFC 151.
[12] 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).
Does the Applicant pass the character test?
The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in section 501(7). Section 501(7)(c) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.
The Applicant was convicted in the District Court of Queensland on 27 November 2019 of offences which Chowdhury DCJ described as “really quite serious” [13]. His Honour regarded count 1 as being “particularly serious” and warranting a further period of imprisonment. His Honour imposed two concurrent sentences each of two years imprisonment, as well as one sentence of one month. The sentences were to be served concurrently and suspended after the Applicant had served a period of five months for an operation period of two years.[14]
[13] Exhibit G1, G Documents G10 at page 49.
[14] Ibid at page 51.
As the custodial term imposed was “a term of imprisonment of 12 months or more”, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in section 501(7)(c) of the Act.
The Tribunal notes that the Applicant has quite properly conceded that he does not pass the character test as prescribed by section 501 of the Act,[15] and that the original decision to mandatorily cancel his visa was properly made under section 501 (3A) of the Act.[16] The Tribunal is therefore consequently satisfied that the Applicant does not pass the character test, pursuant to section 501(6)(a) of the Act and that the Applicant therefore cannot rely on section 501CA(4)(b)(i)[17] of the Act for the mandatory cancellation of his visa to be revoked.
[15] Exhibit A1, Applicant's Statement of Facts Issues and Contentions, paragraph [3].
[16] ibid at paragraph [5].
[17] Note: This provides that the Minister is satisfied that the person passes the character test (as defined by section 501).
The remaining question therefore is found in section 501CA(4)(b)(ii), namely whether there is another reason why the original decision should be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Ministerial Direction No. 79
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[18] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly at paragraph 7, it states that:
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[18] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
In paragraph 6.2(3), the Direction provides:
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to… revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered… in making a revocation decision are identified in Part C of this Direction.
The principles referred to in paragraph 6.2(3) are found in paragraph 6.3 of the Direction, and may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizen’s 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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In the circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen ’s visa should be cancelled, or the visa application refused.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case. Paragraph 8(2) provides that in applying these considerations, information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 8(3) provides that both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.
Three primary mandatory considerations relevant in the context of a revocation decision appear in Part C of the Direction at paragraph 13(1):
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14(1) of the Direction. These considerations are:(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The Tribunal notes and emphasises the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[19]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[19] [2018] FCA 594 at [23].
The Tribunal will address these considerations in turn below.
Evidence
In the Personal Circumstances Form lodged with the Request[20] dated 27 December 2019 he listed his citizenship as New Zealand, and his place of birth as Auckland. He stated an intention to live at a Bethania address upon return to the community and gave his aunt Vera’s name and contact details[21]. He described himself as being in a de facto relationship with, Ms T, an Australian citizen, and said that they got together at school, have a son, and hope to get married. The impact of a negative outcome to his request would be that his three year old son would grow up without his father.[22] He stated that his son lived with his mother at a Bethania address different from the one he stated for his place of intended residence.[23] He stated that before his incarceration he was seeing his son “nearly every day spending multiple hours taking care of him, and forming a strong bond. I know I love my son and he loves me. If I was to leave the country it would impact his life a lot and would result in him growing up in a broken home.”[24] In terms of family details, the Applicant listed one aunt and three cousins but provided no dates of birth. All were New Zealand citizens who currently reside in Australia. He also listed other close members as being his mother in law, five sisters in law, and one brother in law all of whom were resident Australian citizens. He listed 20 uncles and aunts, 10 nieces and nephews, 30 cousins, and 2 grandparents in Australia, and no relatives in any other country.[25]
[20] Exhibit G1, Section 501 G Documents G15 at pages 62-76.
[21] Ibid, at page 65.
[22] Ibid at 66.
[23] Ibid at 67.
[24] Ibid at 68.
[25] Ibid at 71.
Regarding the impact of a negative decision on family members, he stated[26]:
I have a very close bond with all the family members that I listed if I was refused it would be divastating (sic) for them and also that I am like a role model to them cause all my in-laws are still in school and I always help them with school work and outside school activiitys (sic) like sports and training.
[26] Ibid.
He stated that he was currently subject to a Domestic Violence Order (“DVO’) with his partner and ticked the “No” box in answer to the question “Are here any further charges against you that are yet to be dealt with?”.[27]
[27] Ibid at 73.
Regarding the strength, nature, and duration of his ties to Australia, the Applicant stated that he did year 12 at Marsden State High School and worked in retail between 2015 and 2018 for Paul’s Warehouse, and from 2018 to 2019 for Star Track.[28]
[28] Ibid.
In terms of positive contributions made to Australia, the Applicant said that he had played rugby league for “Qld Samoa” and had been working positively for most of the time he had lived in Australia.[29] He stated that he would be homeless and have no support network or family ties in New Zealand, but faced no criminal charges there. He asked that the decision maker to consider that he was only a young man at the time of his offending, and was now in a different mind set, as well as his strong bond with his three year old son, and that all his family lives in Australia.[30]
[29] Ibid at 74.
[30] Ibid at 75.
In support of his request, the Applicant also delivered submissions prepared by Samuta McComber Lawyers,[31] together with a Certificate of Completion of the Circuit Breaker Course on 17 July 2020.[32] The course is described as “a ten week group based program for anyone who feels that their temper is affecting the quality of their relationships”. He also produced two Stress Management Workbooks”[33].
[31] Ibid, G16 at 77-88.
[32] Ibid, G17, G 18 at 89-90.
[33] Ibid, G19 at 91; G20 at 92.
The Applicant also provided a letter,[34] dated 19 August 2020 from Ms Ranandy Stanley of Hope Centre Services, who had been Facilitator for the Circuit Breaker Course which the Applicant had undertaken. Ms Stanley referred to the Applicant as shy and respectful. She said that the Applicant built confidence during the course and learned how to identify situations from which he should remove himself. She said the Applicant worked hard and completed tasks.
[34] Ibid, G26 at 100-101.
In addition, the Applicant provided a statement,[35] from Kristy Wells dated 18 June 2020 who described him as a fantastic worker and father with a great work ethic. She expressed shock that he was facing criminal charges.
[35] Ibid, G21 at 93-94.
The Applicant also submitted a statement,[36] by someone who described himself as the father of the Applicant’s partner. He described the Applicant as a remarkable man and father, and a “calm, kind-hearted soul that loves my daughter and the son they have together.” He described the Applicant as “extremely religious” and having been brought up in the church. He said: “Prior to the crime, Teejay was highly involved in church group.” He said the Applicant had “worked diligently” at Paul’s Warehouse. He said the Applicant grew up without his biological parents, and often displayed lack of trust which resulted in a heightened sense of anger. He said the Applicant “thinks highly of the friends he hangs out with. He appears to find sense of community, belonging and acceptance in the group of boys he spent time with. In addition, the gang leader may fill the role of a father figure. Resulted in peer pressure and role modelling illegal activities he involved [sic]…. After serving his time, Teejay is a reformed individual.” He said that he was committed to the Applicant and would ensure that he reconnected with his church and rugby team, and allow him to live with his family, and take care of his immediate needs until he finds another job. He said “Teejay is an excellent person who just happened to make an error.”
[36] Ibid, G22 at pages 95-96.
The Applicant also provided a statement,[37] from Penina Matagi dated 19 June 2020, who is the brother of the Applicant’s claimed partner. He also spoke positively of the Applicant, referring to his church upbringing, and his kind and respectful good-hearted ways. He painted a rosy picture of a person who is fun and adventurous and always happy and respectful. He said that the Applicant had a bad crowd of friends. He said that prior to his offending, the Applicant used to go to work every day and attended rugby training and church.
[37] Exhibit G1, Section 501 G Documents, G23 at page 97.
The Applicant also provided a statement,[38] dated 8 July 2020 from his claimed partner’s sister who also spoke positively of the Applicant. She expressed the view that since his sentence, the Applicant is “back better than ever. He has found his calling and turned to religion again….Everyone who loves and cares for Teejay has been by his side throughout his journey and will continue to do so.”
[38] Ibid, G24 at 98.
The Applicant also provided a statement,[39] from Fiapito Kwan dated 8 July 2020 who described that Applicant as “a gentle man … always respectful.” He said the Applicant has the support of his community and his family, regretted what he had done, and had changed.
[39] Ibid, G25 at page 99.
The Applicant also provided an undated statement[40] from Jariek Bailey who had known the Applicant since late 2017. He said, “it’s never easy to stay on the right path growing up in Logan without a father figure.” He said the Applicant had been “a great role model for his son ...[and] shows nothing but respect to people who show him respect.” He said that he would try to help the Applicant find work and that he and others would make sure there was no chance of further offending.
[40] Exhibit G1, Section 501 G Documents, G27 at page 102.
The Applicant’s representatives delivered a Statement of Facts, Issues and Contentions which is set out in full as follows:
APPLICANT’S STATEMENT OF FACTS ISSUES AND CONTENTIONS
PART 1
DECISION UNDER REVIEW
1.Mr Teejay Theodosia Hansel Poi-Ilaoa (Applicant) has applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision of the delegate of the Minister of Home Affairs (Respondent) dated 23 December 2020 (Reviewable Decision).
2.Pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act), the delegate decided not to revoke an earlier decision (Original Decision) to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa which was made, as required by s 501(3A) of the Act, on 23 December 2019.
PART 2
ISSUES AND SUMMARY OF APPLICANT’S CONTENTIONS
3.The Applicant concedes that:
(a)the decision to cancel his visa under s 501(3A) of the Act was made according to law; and
(b)he does not satisfy the character test as prescribed by s501 of the Act for the purposes of s 501CA(4)(b)(i) of the Act.
4.The Applicant concedes that, as at the date of the Original Decision, he:
(a)had a substantial criminal record as defined through s 501(7)(c) of the Act;
(b)did not pass the character test as prescribed by s 501(6)(a) of the Act;
(c)was serving a sentence of imprisonment, on a full-time basis, in a custodial institution, for an offence against a law of the state of Queensland.
5.The Applicant therefore concedes that the Original Decision was properly made under s 501(3A) of the Act.
6.In the premises, the sole issue for determination in these proceedings is whether the Tribunal is satisfied that there is another reason why the Original Decision should be revoked, such that the discretion conferred by s 501CA(4) of the Act should be exercised.
7.The Applicant contends that there is another reason why the Original Decision should be revoked, such that the Reviewable Decision should be set aside and substituted with a decision that the Original Decision be revoked under s 501CA(4) of the Act.
PART 3: FACTS
8.The table below sets out the key facts relevant to this proceeding.
Date
Event
Reference
7 March 2000
The Applicant, Teejay Theodosia Hansel Poi-ilaoa, is born.
G1, page 1.
2012
The Applicant moved to Australia at 12 years of age.
G7, page 38.
29 April 2016
The Applicant was reprimanded for Possession of a knife in a public place or school (on 01/04/2016) but had no conviction recorded.
G8, page 43.
25 June 2017
The Applicant arrived in Australia and was granted a Class TY Subclass 444 Special Category (Temporary) visa.
G29, page 105.
2 August
2017
The Applicant was fined $300.00 for:
· Possess tainted property (on 30/06/2017);
· Possessing dangerous drugs (on 30/06/2017);
but had no conviction recorded.
G8, page 43.
18 April 2018
The Applicant appeared at the Beenleigh Magistrates Court for Possess tainted property (22/11/2017) and was ordered to appear on 14 May 2018.
G8, page 43
14 May 2019
The Applicant was reprimanded for Failure to appear in accordance with undertaking (on 23/01/2018) but had no conviction recorded.
G8, page 43
20 March
2019The Applicant was fined $300.00 for Breach of bail condition (between 17/11/2018 and 23/11/2018) but had no conviction recorded.
G8, page 43.
29 March
2019
The Applicant was fined $150.00 for Possess utensils or pipes etc that had been used (on 01/03/2019) but no conviction was recorded.
G8, page 43.
27 November
2019
The Applicant was convicted of:
· Unlawful use of motor vehicles aircraft or vessels – use (on 21/07/2018);
· Stealing (on 21/07/2018);
and was sentenced on all charges to imprisonment of one month imprisonment to be served concurrently (with three days of pre-trial custody declared to be time served).
G8, page 43. 27 November
2019
The Applicant was convicted of:
· Unlawful entry of vehicle for committing indictable offence at night use/ threatened violence whilst armed in company (on 27/11/2018);
· Dangerous operation of a vehicle (on 21/07/2018);
and was sentenced on all charges to two years imprisonment to be suspended for two years after serving five months.
G8, page 43.
23 December
2019
The Applicant’s Class TY Subclass 444 Special Category (Temporary) visa held by the Applicant was cancelled under s 501(3A) of the Act.
G29, pages 105-110.
24 December
2019
The Applicant acknowledged receipt of the notice of his visa cancellation.
G29, page 111.
27 December
2019
The Applicant requested that the Applicant’s mandatory visa cancellation be revoked.
G15, page 59.
17 January
2020
The Applicant was convicted of:
· Unlawful possession of motor vehicles, aircraft or vessels with intent to deprive
(between 28/07/2019 and 27/08/2019);
· Contravention of domestic violence order (on 28/08/2019);
· Unlawful possession of weapons category D/H/R weapon (on 28/08/2019);
and on all charges had a probation period of 12 months imposed.
G8, page 43.
9 June 2020
The Applicant’s representatives informed the National Character Consideration Centre (NCCC) that they represented the Applicant.
G3, page 11.
17 July 2020
The Applicant completed the 10-week Circuit Breaker Course.
G17, page 89.
18 December
2020
The decision was made to not revoke the mandatory cancellation of the Applicant’s visa.
G7, pages 29-
41.
23 December
2020
The Department notified the Applicant of the decision not to revoke the mandatory cancellation of the Applicant’s visa. G7, pages 26-
28.
31 December
2020
The Applicant submitted an Application for Review of Decision
G2, page 1.
PART 4 RELVEANT LAW AND POLICY
9.Section 501(3A) of the Act provides:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record, on the basis of paragraph (7)(a),
(b)or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child) and
(b)the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
10.Section 501CA(4) of the Act provides, in respect of decisions made under s 501(3A) of the Act,
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.
11.Section 501CA of the Act is an ameliorative provision which confers on the decision -maker discretion to revoke a cancellation made under s 501(3A) of the Act.1
12.Section 501CA(4)(b)(ii) of the Act requires the decision maker to assess the propriety -of a revocation decision, balancing factors both in favour and against revocation.2
13.If:
(a)a person makes representation to the Minister under s 501CA of the Act; and
(b)the decision maker forms the view that there is another reason why the original decision should be revoked, the decision maker must revoke the original decision.3
14.Section 499(1) of the Act provides,
The Minister may give written directions to a person or body having function or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
15.On 20 December 2018 the Minister for Immigration and Border Protection gave Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79) under the power conferred by s 499(1) of the Act. Direction 79 is binding on delegates of the Minister,4 but not the Minister acting in person.5
16.Paragraph 6.3 of Direction 79 sets out seven guiding principles in relation to the exercise of the direction conferred by s 501CA(4) of the Act, while Part C of Direction 79 identifies a range of matters which, if relevant to a particular case, are to be brought into account in determining how the discretion conferred by s 501CA(4) of the Act should be exercised.6
17.Paragraph 13(1) of Direction 79 provides, ‘where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.'
18.Paragraph 13(2) of Direction 79 establishes three primary matters that must be considered in determination whether to exercise the discretion conferred by s 501CA(4) of the Act, being:
(a)the protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)the expectations of the Australian community.
19.Paragraph 14(1) of Direction 79 sets out a further five considerations that must be taken into account if relevant, being:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
20.As stated by Collier J in Morzano,7 s 501CA(4)(b)(ii) of the Act requires the decision maker to assess the propriety of a revocation decision, balancing factors both in favour and against revocation.
21.The relevant factors requiring consideration and balancing in the Applicant’s case are set out in Part C of Direction 79.8
22.The consideration of the matters identified in Part C of Direction 79 is to be informed by the principles set out at paragraph 6.3 of Direction 79.9 Those principles can be summarised as follows:10
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;11
(b)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;12
(c)A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia;13
(d)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any future risk of similar conduct in the future is unacceptable;14
(e)Australia has a low tolerance for any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;15
(f)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia;16 and
(g)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal for minor children and other immediate family members in Australia are considerations for determining whether to exercise the discretion.17
23.On the balance of matters, taking into account the relevant matters for consideration, the discretion to revoke the decision to cancel the Applicant’s visa under s 501(3A) of the Act, as conferred by s 501CA(4) of the Act ought to be exercised in the Applicant’s favour.
24.It is submitted that the assessment of the Applicant’s index offending should be undertaken considering the Applicant’s circumstances (particularly drug and alcohol abuse) preceding his decision to engage in criminal conduct. The relevant circumstances are set out in the Applicant’s written Revocation Request18 and Personal Circumstances Form.19
25.It is submitted that in circumstances where these aspects weighed heavily on the sentencing judge, they should properly weigh heavily in the contemplation of the decision maker.
26.It is submitted that there are aspects of the Applicant’s circumstances that should weigh in favour of the Applicant when determining whether to exercise the discretion conferred by s 501CA(4) of the Act, including the Applicant’s familial support networks, insight into the causes of his offending, cessation of his drug use and participation in rehabilitation action.
27.Further, it is submitted the aspects of the Applicant’s behaviour identified above all weigh in favour of exercising the discretion conferred by s 501CA(4) of the Act.
Primary Consideration—Protection of the Australian Community
28.The details of the Applicant’s criminal history is set out in the Applicant’s National Criminal History.
The nature and seriousness of the conduct
29.With respect to paragraph 13.1.1(1)(a) of Direction 79, the Applicant concedes that the offence of Unlawful entry of vehicle for commit indicatable offence at night used/threat violence whilst armed involved violence and therefore must be viewed very seriously. However, it is respectfully submitted that:
(a)his behaviour was not premeditated;
(b)the Applicant was intoxicated by drugs and alcohol during the offending;
(c)the Applicant is ashamed and remorseful for his criminal offending; and
(d)the Applicant’s offending did not involve any sexual misconduct or indecency.
30.With respect to paragraph 13.1.1(1)(b) of Direction 79,the Applicant concedes that the offence of Unlawful entry of vehicle for commit indicatable offence at night used/threat violence whilst armed, was committed against a woman and must be viewed very seriously. The Applicant is extremely ashamed and remorseful for this behaviour. The Applicant notes that this behaviour occurred while the Applicant was intoxicated from both alcohol and drugs but recognises that this does not justify his behaviour.
31.As for the Contravention of Domestic Violence Order it is respectfully submitted that while the Applicant is remorseful for this offence, it is submitted that the contravention did not involve an element of actual or threatened violence. As such, no actual or threatened violence occurred between the Applicant and the aggrieved, and the Applicant respectfully submits that paragraph 13.1.1(1)(b) of Direction 79 is not engaged by this offence.
32.With respect to paragraph 13.1.1(1)(c) of Direction 79, it is submitted that:
(a)the Applicant’s index offending conduct did not involve any vulnerable members of the community, including minors, the elderly or the disabled; and
(b)no aspect of the Applicant’s index offending was directed towards government representatives or officials carrying out or because of their duties.
33.With respect to paragraph 13.1.1(1)(d) of Direction 79, it is submitted that the sentence given to the Applicant goes to the nature of his criminal conduct.
34.With respect to the offence of Unlawful possession of motor vehicles, aircraft or vessels with intent to deprive dealt with on 17 January 2020, the Applicant respectfully submits that the sentence of probation, in comparison to the maximum sentence of seven years imprisonment available for that offence:20
(a)suggests that the circumstances of the offending falls on the lower end of the spectrum of objective seriousness for this type of offence; and
(b)reflects the antecedents and the mitigating factors attached to the Applicant’s offending.
35.With respect to the offences of Unlawful entry of vehicle for commit indicatable offence at night used/threat violence whilst armed and Dangerous driving on 27 November 2019, the Applicant respectfully submits that the structure of the sentence handed down by the sentencing judge, including:
(a)the sentence of to two years imprisonment to be suspended for two years after serving five months on all charges, compared to the maximum sentence of 14 years imprisonment21 available for Unlawful entry of vehicle for commit indicatable offence at night used/threat violence whilst armed; and
(b)the sentence of two years imprisonment to be suspended for two years after serving five months on all charges, compared to the maximum sentence of three years imprisonment22 for Dangerous driving (that is, a fifth of the head sentence), reflects the antecedents and the mitigating factors to the Applicant’s offending.
36.With respect to the offences of Unlawful use of motor vehicles aircraft or vessels – use and Stealing dealt with on 27 November 2019, the Applicant respectfully submits that the structure of the sentence handed down by the sentencing judge, including:
(a)the sentence of one-month imprisonment on all charges, in contrast to the maximum sentence of seven years imprisonment23 for Unlawful use of motor vehicles aircraft or vessels – use;
(b)the sentence of one-month imprisonment on all charges, in contrast to the maximum sentence of five years imprisonment24 for Stealing; reflects the antecedents and the mitigating factors attached to the Applicant’s index offending.
37.With respect to the remainder of the Applicant’s prior offending, the Applicant submits the judicial decisions to reprimand or impose fines, while refusing to record convictions or impose a sentence of imprisonment, suggests that:
(a)the circumstances of the Applicant’s prior offending fell extremely low on the scale of objective seriousness for those offences; and
(b)reflect the antecedents and the mitigating factors to the Applicant’s offending.
38.With respect to paragraph 13.1.1(1)(e) of Direction 79, it is submitted that a detailed examination of the Applicant’s history of offending does not disclose a specific pattern of criminal offending in relation to any specific type of crime. However, what is clear is that the Applicant’s history of illegal substance use has played a significant role in the frequency of his offending.
39.With respect to paragraph 13.1.1(1)(f) of Direction 79, the Applicant submits that any cumulative effect of offending would be limited to offending in 2018 to 2019 and cannot be said to be so concerning as to outweigh other considerations and form the basis of a non-revocation outcome.
40.With respect to paragraph 13.1.1(1)(g) of Direction 79, it is submitted that the Applicant has never provided false or misleading information to the Department of Home Affairs.
41.It is submitted that 13.1.1(1)(h) of Direction 79 is irrelevant as the Applicant has never been formally warned or been made aware in writing of the consequences of further offending on his migration status.
42.It is submitted that paragraph 13.1.1(1)(i) of Direction 79 is irrelevant as the Applicant has never committed a crime while in immigration detention.
Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
43.Paragraph 13.1.2(2) of Direction 79 provides that in contemplating the risk to the Australian community of the non-citizen committing further offences, regard must be had to:
(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 re-offending.
44.As can be demonstrated by the Applicant’s Criminal History,25 the Applicant would submit that he has a low risk of reoffending because the Applicant’s offending was predicated on his addiction to drugs and alcohol abuse, which the Applicant has gained insight into and has since addressed through rehabilitation action and sound prevention plan.
45.It is submitted that assessment of the Applicant’s offending conduct should be undertaken in light of his rehabilitation efforts. Since engaging in the index offending, the Applicant has:
(a)gained insight into the cause of his offending (substance-use);
(b)ceased his drug use;
(c)completion of a 10-week rehabilitation course on 17 July 2020;26
(d)completion of the ‘Stress Management – What is stress’ and ‘Stress Management – Behaviour and Stress’ booklets;27 and
(e)obtained employment which continued until his incarceration and subsequent immigration detention.
It is submitted that these should be seen as protective factors mitigating against future offending.
46.Given the Applicant’s young age and the relationship between his offending and drug- use, it is submitted that his maturity and commitment to seeking rehabilitation and counselling limits his risk of re-offending, and this risk is further minimised by the static risk factors which include parental responsibility of a young child, and unwavering family support.
47.It is submitted that the Applicant’s risk of reoffending is also minimised by his appreciation that he has likely exhausted all of his chances, as well as his regret of his flagrant disregard for the chances afforded by the courts to him in the past.
48.The Applicant’s own accounts are that he is remorseful and has insight into the role of his drug use and its relationship to his offending behaviour, and that the controlled environment of incarceration and immigration detention have provided another opportunity to be clear of drugs. The Applicant also considers that this clarity has allowed him to reflect on his behaviour
49.In circumstances where the Applicant:
(a)has insight into the cause of his offending;
(b)has mitigated the risk by ceasing drug-use;
(c)is wholly committed to engaging in relevant and pertinent rehabilitation (a level of commitment not personally possessed previously);28 and
(d)continued to take the responsibility of fatherhood seriously;
it is our submission that any further offending by the Applicant, if any, is likely to be far less serious in nature than his most serious offending conduct.
50.In the premises, the Applicant concedes that this consideration weighs against non- revocation of the Applicant’s visa, but submits that its weight is not so great that it outweighs the considerations which weigh in favour of revoking the cancellation of the Applicant’s visa.
Primary Consideration—Best interests of minor children in Australia affected by the decision
51.Pursuant to paragraph 13.2(1) of Direction 79, ‘Decision-makers must determine whether revocation is, or is not, in the best interests of the child.’
52.The Applicant has a son…who is an Australian citizen.
53.Given the age of his child, and his likely age at the date the decision under s 501CA(4) of the Act will be made, the best interests of the above mentioned children must be considered when making a decision whether to exercise the discretion conferred by s 501CA(4) of the Act.29
54.With respect to 13.2(4)(a) of Direction 79, it is submitted that notwithstanding the Applicant’s incarceration and immigration detention, the Applicant:
(a)has been a prominent and constant feature of his child’s life;and
(b)continues to be committed to ensuring that a meaningful relationship is maintained with his child upon his release from immigration detention.
55.With respect to 13.2(4)(b) of Direction 79, it is submitted that the Applicant has played a positive parental role in the past and will continue to play a prominent, positive parental role should the decision to cancel his visa be revoked under s 501CA(4) of the Act.
56.With respect to 13.2(4)(c) of Direction 79, it is submitted that there is no evidence or suggestion that the Applicant has offended in front of his child, or that the child has a knowledge of his criminal conduct in a way to negatively impact his child.
57.With respect to 13.2(4)(d) of Direction 79, it is submitted that permanent lifelong separation from his father (the Applicant) would have a devastating effect on his child now and into the future. Further, the financial circumstances of the Applicant and the child’s mother, [Ms T], together with the young age of their child, would limit the possibility and regularity of arranging in-person contact between the child and the Applicant.
58.With respect to 13.2(4)(e) of Direction 79, the Applicant accepts that [Ms T] fulfils a parental role in relation to the child. However, the Applicant submits any permanent absence from his child will ultimately be of detriment to their child as it permanently dissolves any option for family reunion and tears at the very fabric of the family unit.
59.With respect to 13.2(4)(f) of Direction 79, it is submitted that there are no known views of the Applicant’s child.
60.With respect to 13.2(4)(g) of Direction 79, it is submitted that there is no evidence that the Applicant has ever abused or neglected his child in any way or in any form.
61.With respect to 13.2(4)(h) of Direction 79, it is submitted that:
(a)there is no evidence that the Applicant’s child has suffered or experienced any physical emotional trauma arising from the Applicant’s conduct; and
(b)any distress caused to the Applicant’s child by his imprisonment is too remote from the Applicant’s conduct to fall within the scope of the consideration of paragraph 13.2(4)(h).
62.In the premises, it is submitted that:
(a)non-revocation would cause serious and significant detriment to the Applicant’s child; and
(b)the determination that revocation of the cancellation of the Applicant’s visa is in the best interests of the Applicant’s child and should weigh heavily in favour of exercising the discretion to revoke as conferred by s 501CA(4) of the Act.
Primary Consideration—Expectations of the Australian Community
63.Direction 79 requires a decision-maker to have ‘due regard to the Governments views’ on whether, because of the nature of offences a non-citizen has committed, the Australian community would expect that the person now hold a visa
64.The Full Court’s decision in FYBR v Minister for Home Affairs [2019] FCAFC 185, along with the existing authorities in YNQY v Minister for Immigration and Border Protection30 and Afu v Minister for Home Affairs31 establish that:
(a)The ‘expectations of the Australian community’ cannot be measured or determined as if it is a provable fact. It is an assessment of community values made on behalf of that community;32
(b)The Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;33
(c)The Government’s view in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the government thinks is the ‘expectations of the Australian community’, and the Tribunal should have due regard of that statement, if made;34
(d)In assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.35
65.In ascertaining the weight attributable to this consideration, it is submitted that the Tribunal should take into account the following factors and/or findings:
(a)the Applicant entered Australia as a child and has resided here for all of his adult life;
(b)the Applicant’s offending occurred while he was quite young and in the context of substance use, and despite his young age the Applicant has taken rehabilitation efforts to address his drug use and behaviour;
(c)the Applicant has made positive contributions to the Australian community through education and employment;
(d)the exclusion of the Applicant from Australia, and therefore his family, will have and will continue to have an adverse impact on his immediate family, including a child of minor age; and
(e)the Applicant has a significant number of family members, friends, and a support network living in Australia.
66.In the premises, it is submitted that this primary consideration weighs in favour of not revoking the Applicant’s visa, but it should be only given little weight.
Other Consideration—International non-refoulement obligations
67.It is submitted that this matter is not relevant to the Applicant’s circumstances.
Other Consideration—Strength, nature and duration of ties
68.Pursuant to paragraph 14.2(1) of Direction 79, decision makers must consider the strength, nature and duration of ties to Australia when considering whether to exercise the discretion conferred by s 501CA(4) of the Act.
69.It is submitted that in circumstances where:
(a)the Applicant has resided in Australia for his adult years;
(b)the Applicant has a minor-aged child who resides in Australia as an Australian citizen, with whom he has a positive and meaningful relationship;
(c)the Applicant’s mother (biological aunty but mother by way of cultural adoption), and extended family members reside in Australia; and
(d)the Applicant’s social and employment ties are to Australia;
this consideration should weigh strongly in favour of exercising the discretion conferred by s 501CA(4) of the Act.
Other Consideration—Impact on Australian Business Interests
70.It is submitted that this consideration is not relevant to the Applicant’s circumstances.
Other Consideration—Impact on victims
71.Pursuant to paragraph 14.4(1) of Direction 79, the Tribunal is required to consider the impact of a decision not to revoke a cancellation made under s 501(3A) on members of the Australian community, including the victims of the Applicant’s criminal behaviour.
72.In circumstances where there is no such contemporaneous information before the Tribunal, it is submitted that the Tribunal is unable to contemplate this consideration further and it should be neutral in deciding whether to exercise the discretion conferred by s 501CA(4) of the Act.
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal finds as follows:
·Primary Consideration A weighs extremely heavily in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Application of 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
The decision under review is affirmed.
I certify that the preceding 199 (one hundred and ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
...........................[SGD].............................................
Associate
Dated: 22 March 2021
Date of hearing: 3 and 4 March 2021 Solicitor for the Applicant:
Ms Jennifer Samuta
Samuta McComber Lawyers
Solicitor for the Respondent Mr Jake Kyranis
Sparke Helmore
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents (G1 to G31 pages 1 to 145)
R
-
14 JAN 2021
A1
Applicant’s Statement of Facts Issues and Contentions
A
29 JAN 2021
29 JAN 2021
A2
Applicant’s Further Submissions (TP1 to TP12 pages 1 to 12)
A
-
26 JAN 2021
R1
Respondent’s Statement of Facts Issues and Contentions
R
11 FEB 2021
16 FEB 2021
R2
Respondent’s Tender Bundle (TB1 To TB3 pages 1 to 38)
R
-
16 FEB 2021
ANNEXURE A – EXHIBIT LIST
ANNEXURE B – ORIGINAL DECISION
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2020/8615
General Division )
Re: Teejay Poi-ilaoa
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentDECISION
TRIBUNAL: Member R Maguire
DATE: 17 March 2021
PLACE: Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 18 December 2020 to not revoke the cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
........................[SGD].........................
Member R Maguire
11
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