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

Popovski and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1159 (13 May 2022)
Division:GENERAL DIVISION
File Number(s): 2022/1601
Re:Mr Zoranco Popovski
APPLICANT

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

DECISION
Tribunal:Dr L Bygrave, Member
Date:13 May 2022
Place:Sydney

The Tribunal affirms the decision under review.
................................[SGD]........................................
Dr L Bygrave, Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – whether there was family violence – best interests of minor children – interests of unborn child to be other consideration – expectations of the Australian community – impediments to removal – strength, nature and duration of ties to Australia – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499(1), 499(2), 499(2A), 501CA, 501(6) and 501(7).
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Dr L Bygrave, Member
13 May 2022
INTRODUCTION

The Applicant, Mr Zoranco Popovski, is 53 years old and a citizen of North Macedonia. He first arrived in Australia in 1970, subsequently departed Australia with his family in 1974 and then returned to Australia in 1986.
On 10 September 2004, Mr Popovski was granted a Class BC (Subclass 100) Spouse visa (visa).
On 15 March 2021, Mr Popovski was convicted in the Sutherland Local Court (NSW) of offences including ‘break and enter house etc steal value <=$60,000’ (three counts), ‘break and enter dwelling-house etc with intent (steal)’ (three counts), ‘goods in personal custody suspected being stolen (not m/v)’ (three counts) and ‘enter dwelling w/i (steal)-T1’, and was sentenced to an aggregate term of 12 months imprisonment.[1]
[1] Exhibit G-G6, pages 26-29.
On 20 April 2021, Mr Popovski was notified in writing by the Department of Home Affairs (the Department) that his visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) because he did not pass the character test on the following ground: he had a ‘substantial criminal record’ as defined in subsection 501(7) of the Act because he had been sentenced to a term of imprisonment of 12 months or more (the original decision).[2]
[2] Exhibit G-G25.
Pursuant to section 501CA of the Act, Mr Popovski submitted a Request for Revocation of a Mandatory Visa Cancellation Under S501(3A) form to the Department on 25 April 2021.[3]
[3] Exhibit G-G11.
On 24 February 2022, a delegate of the Minister[4] decided not to revoke the original decision to cancel Mr Popovski’s visa.[5]
[4] Referred to in the decision as ‘Delegate of a Minister administering the Migration Act 1958’.
[5] Exhibit G-G2.
On 25 February 2022, Mr Popovski filed an application for review of this decision to the General Division of the Administrative Appeals Tribunal (the Tribunal).[6]
[6] Exhibit G-G1.
The matter was heard by the Tribunal in Sydney via videoconference on 2 May 2022. Mr Popovski did not have legal representation; he attended the hearing and provided oral evidence from Villawood Immigration Detention Centre.
RELEVANT LEGISLATION AND POLICY
The power to revoke a visa cancellation
Subsection 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied the person does not pass the character test because of the operation of subsections 501(6) and 501(7).
Subsection 501(6) of the Act defines the character test. Relevantly, paragraph 501(6)(a) of the Act states that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined by subsection 501(7). Subsection 501(7) of the Act includes the provision that, for the purposes of the character test, a person has a ‘substantial criminal record’ if ‘the person has been sentenced to a term of imprisonment of 12 months or more’.
In accordance with subsection 501CA(4) of the Act, the Minister may revoke the original cancellation decision if the person makes representations and the Minister is satisfied that the person passes the character test or there is another reason why the original decision should be revoked. This is a discretionary power.
I am satisfied that Mr Popovski does not pass the character test in subsection 501(6) of the Act because his criminal record, which includes a sentence of imprisonment for 12 months (aggregate), meets the statutory definition of a ‘substantial criminal record’ in subsection 501(7) of the Act.
Consequently, pursuant to subparagraph 501CA(4)(b)(ii) of the Act, I consider whether there is another reason to revoke the original decision to cancel Mr Popovski’s visa.
The power of the Tribunal to review the decision to cancel Mr Popovski’s visa is provided by subsection 500(1) of the Act. The Minister has given written directions as to the exercise of the power to review the decision under subsection 499(1) of the Act and subsection 499(2A) of the Act provides that these directions must be complied with.
The relevant direction is Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction no. 90), which commenced on 15 April 2021.
Direction no. 90
Direction no. 90 provides the following guidance on how the discretion is to be exercised:
6. Exercising the discretion
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
The Minister sets out the principles in paragraph 5.2 that provide a framework to approach the task of deciding whether to revoke a mandatory visa cancellation under section 501CA of the Act. These principles are:
(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 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 measureable [sic] risk of causing physical harm to the Australian community.
Primary considerations are listed in section 8 of Direction no. 90 as follows:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Other considerations are set out at section 9 of Direction no. 90. These include (but are not limited to):
(1)international non-refoulement obligations;
(2)extent of impediments if removed;
(3)impact on victims;
(4)links to the Australian community, including:
(a)strength, nature and duration of ties to Australia; and
(b)impact on Australian business interests.
Section 7 of Direction no. 90 states that in applying the primary and other considerations: information and evidence from ‘independent and authoritative sources’ should be given appropriate weight; primary considerations ‘should generally be given greater weight’ than the other considerations; and one or more primary considerations ‘may outweigh other primary considerations’.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Paragraph 8.1 of Direction no. 90 outlines the Government’s commitment to protecting the Australian community ‘from harm as a result of criminal activity or other serious conduct by non-citizens’ and requires that I give consideration to:
(a)the nature and seriousness of Mr Popovski’s conduct to date; and
(b)the risk to the Australian community should Mr Popovski commit further offences or engage in other serious conduct.
The nature and seriousness of Mr Popovski’s conduct to date
Mr Popovski was born in Bitola, Yugoslavia (now North Macedonia) in 1968. He first arrived in Australia with his mother as a young child in 1970 (his father had come to Australia in 1969). In 1974, he departed Australia with his parents and younger brother (born in 1972) and returned to Yugoslavia.
Mr Popovski attended school in Yugoslavia until year 10 and returned to Australia in 1986 when he was 17 years old. He has lived in Australia since this time except for a period from September 2003 to September 2004 when he returned to North Macedonia with his wife and their two daughters.
From 1986 to 2016, Mr Popovski was self-employed as a bricklayer. He married his wife in 1996 but they subsequently separated in 2009. He and his ex-wife have two daughters who were born in 1996 and 1999; his older daughter is currently pregnant with Mr Popovski’s first grandchild. Mr Popovski also has a brother and an extended family of aunts, uncles and cousins living in Australia; he has a sister who lives in Germany.[7]
[7] Exhibit TB-TB14.
Mr Popovski’s criminal history
Mr Popovski’s criminal record is detailed in an Australian Criminal Intelligence Commission (ACIC) report dated 30 April 2021 and includes convictions for the following offences:
·Bankstown Local Court, 6 October 1994. Offence: cultivate prohibited plant (cannabis). Result: fine $350 and court costs.
·Newtown Local Court, 12 August 2014. Offence: possess prohibited drug. Result: fine $600.
·Sutherland Local Court, 12 May 2016. Offence: enter prescribed premises of any person without lawful excuse. Result: fine $400.
·Sutherland Local Court, 4 August 2016. Offence: possess prohibited drug. Result: fine $1,500.
·Sutherland Local Court, 11 October 2016. Offence: enter enclosed not prescribed premises w/o lawful excuse’. Result: fine $550.
·Central Local Court, 15 August 2017. Offences: break and enter house etc steal value less than or equal to $60,000-T1 (five counts); break and enter dwelling-house etc with intent (steal)-T1; break and enter house etc steal value less than or equal to $60,000-T1. Result: imprisonment (aggregate) for 30 months with a non-parole period with conditions of 10 months.
·Wollongong Local Court, 12 December 2018. Offences: possession of equipment for administering prohibited drugs; possess prohibited drug; shoplifting value less than or equal to $2,000-T2’. Result: community correction order for 12 months and fine $500.
·Wollongong Local Court, 14 November 2019. Offences: possess prohibited drug; shoplifting value less than or equal to $2,000-T2. Result: (call up – breach) community correction order for eight months.
·Sutherland Local Court, 2 January 2021. Offences: shoplifting value less than or equal to $2,000-T2 (two counts). Result: fine $750.
·Sutherland Local Court, 15 March 2021. Offences: break and enter house etc steal value less than or equal to $60,000 (three counts); break and enter dwelling-house etc with intent (steal) (three counts); goods in personal custody suspected being stolen (not motor vehicle) (three counts); enter dwelling with intent (steal)-T1. Result: imprisonment (aggregate) 12 months with a non-parole period of four months.[8]
[8] Exhibit G-G6.
At the hearing, Mr Popovski accepted his criminal record and explained that his offending from 2014 related to his use of and addiction to methamphetamine (ice). He said he had never used prohibited drugs before 2010 but started using ice ‘on weekends’ following his divorce.[9] He was candid in his oral evidence that his stealing offences related to funding his ice addiction.
[9] Oral evidence of Z Popovski, 2 May 2022.
Mr Popovski maintained he has never used cannabis. He agreed with the NSW Police facts sheet that set out his conviction for cultivating a prohibited plant in 1994 was related to him ‘having friends over for a [sic] entertaining smoke of cannabis’ and subsequently planting ‘some seeds left in the bag’, but he ‘did not maintain the plants’.[10]
[10] Exhibit TB-TB6, pages 249-250.
I note that, on two occasions, Mr Popovski has been convicted for offences that have resulted in sentences of imprisonment for 12 months or more.
On 15 August 2017, Mr Popovski was convicted of the offences ‘break and enter house etc steal value <= $60,000-T1’ (five counts), ‘break and enter dwelling-house etc with intent (steal)’ and ‘break and enter house etc steal value <= $60,000’, and sentenced to an aggregate term of 30 months imprisonment with a non-parole period of 10 months.
Consistent with documents summonsed from the NSW Department of Corrective Services and NSW Police, Mr Popovski told the Tribunal that his ice addiction escalated to ‘daily use’ in 2016, and he was periodically ‘homeless’ and ‘employed sporadically’ during this period.[11] He accepted that these convictions were in relation to breaking into and entering properties and stealing offences he committed during October and November 2016.
[11] Exhibit TB-TB1, page 27; TB-TB3, page 110.
The transcript of Court proceedings on 15 August 2017 includes submissions made by Mr Popovski’s lawyer, which provide the following context to his drug use and offending:
…Mr Popovski ran his own bricklaying business…for about 20 years. About six years ago, he separates from his ex-wife, they sell the family home, they both go on holidays. This is a person who was living a very comfortable middle-class life.
Following the separation,…three years ago, he meets the wrong people at work... And while he’s feeling sorry for himself that he still separating, he starts dabbling with ice. That’s where it all began… [H]e tells me that in 2016, especially the last six months before his arrest, that’s when his use was just out of control. He had no more contact with his ex-wife or his two daughters and he just committed these offences.
These offences you will note were committed in a very short period of time. The vast majority of them [were] committed between…25 October and 1 November with two others occurring earlier in October… [T]hat’s an indication that his drug use at that time had increased significantly.
One thing you can note from the offences is there’s never been any use of violence. He’s never committed these offences while the victims were at home in their presence…[12]
[12] Exhibit G-G9, page 43.
In sentencing remarks, Magistrate Greenwood observed that Mr Popovski’s criminal history was ‘certainly not a serious record’ but ‘things have all come to a head with this offending’.[13] She stated:
I am of the view that looking at the totality of the offending,… there is no other option but a full-time imprisonment type sentence today. What I am going to do is give you an aggregate sentence. I am going to tell you what I would have given you each matter and then I’m going to give you the one sentence that reflects the total of your offending…
…for each of the matters, I would have given you a sentence of five months…
In my view, it is not appropriate to have you serve time at the same time for different matters because it does not reflect the seriousness of the offending and the fact that there are other victims. So that gives you a sentence of 30 months today but I accept that you are a person who is in desperate need of rehabilitation… It is one thing…to be sober while in custody but…you need to be able to…be sober in the community and that means you need to be rehabilitated in the community.
I am going to urge upon you thoughts about full-time residential rehab[ilitation], the only tried and true way of getting sober and staying sober. But what I am doing today is I am structuring your sentence to focus on rehabilitation and I think you have good prospects…
I HAVE GOT THE AGGREGATE SENTENCE OF 30 MONTHS AND I SET A NON-PAROLE PERIOD OF TEN MONTHS TO COMMENCE 1 NOVEMBER 2016.
For the remaining 20 months, you will be on parole in the community and I am ordering that you be subject to supervision, I have found special circumstances, the need for your rehabilitation… [that] require you to attend rehabilitation programs…
You know what is going to happen if you do not comply? You do not come back to Court. You go straight back to gaol…
I am giving you the chance. It is up to you to decide what you want to do with that.[14] [emphasis in original]
[13] Exhibit G-G9, page 45.
[14] Exhibit G-G9, pages 45-46.
Summonsed ‘case note report’ records from the NSW Department of Corrective Services set out discussions between corrections officers and Mr Popovski about rehabilitation between September 2017 and February 2019.[15] I discuss this evidence further in relation to the likelihood of Mr Popovski engaging in criminal or serious conduct in the future; however, Mr Popovski provided relevant oral evidence that he did not participate in any rehabilitation programs and did not use ice for about 12 months after he was released from jail on parole in 2017.
[15] Exhibit TB-TB1, pages 26-63.
On 15 March 2021, Mr Popovski was convicted of offences that included ‘break and enter house etc steal value <=$60,000’ (three counts), ‘break and enter dwelling-house etc with intent (steal)’ (three counts), ‘goods in personal custody suspected being stolen (not m/v)’ (three counts) and ‘enter dwelling w/i (steal)-T1’, and sentenced to an aggregate term of 12 months imprisonment.[16]
[16] Exhibit G-G6, pages 26-29.
In her sentencing remarks on 15 March 2021, Magistrate Boulos stated she ‘opposed’ dealing with the offences committed by Mr Popovski through an ‘intensive correction order’ because the sentencing assessment report showed he was:
…subject to parole and community correction in 2016 and 2018 and he had poor compliance rating. His parole order was revoked in 2018 and in December 2018 and March 2019 his whereabouts were unknown. He re-offended and then he failed to report and engage with intervention.[17]
[17] Exhibit G-G10, pages 50-51.

Magistrate Boulos further stated that:
…there is nothing before [her] to confirm or to indicate that [Mr Popovski’s] addressed [the] underlying issue that is linked to his criminal offending behaviour. If there was something the court could hang its hat upon, if he engaged in rehabilitation in some positive way for some time, then perhaps [she] would consider releasing him in the community.
Given lack of prospects of rehabilitation… [H]e doesn’t have any prospects of rehabilitation. At this stage,…he’s had a relapse and it is a real concern…that the community will be protected if he received full-time custody. I’m going to exercise special circumstances…
There has been an escalation offending and that is associated with his ongoing issue with illicit drugs…
[W]ith respect to all of the offending…there is some element of planning [but] it appears… that it is opportunistic…
[His offending] is linked to his illicit substance [use]… He appears to have insight into the link between his substance use and his offending behaviour. Although he has indicated a willingness to address these issues, he hasn’t taken any steps at this stage to address these issues. For those reasons, the prospects of rehabilitation…are none.[18]
[18] Exhibit G-G10, page 51.
Evidence regarding family violence
At the Tribunal hearing, Mr Popovski was asked to comment on two ‘narratives’ contained in records summonsed from the NSW Police. The first narrative was dated 1 March 2008 and referred to a report made to Police by Mr Popovski’s (then) wife in relation to verbal arguments and threats made on 28-29 February 2008.[19] The second narrative was dated 18 July 2010; it outlined the marital history of Mr Popovski and his ex-wife, their separation in August 2009, and reported incidents between Mr Popovski and his ex-wife in July 2010.
[19] Exhibit TB-TB8, page 323.
Mr Popovski provided oral evidence to the Tribunal that he was unaware of any reports to the NSW Police from his ex-wife or in relation to his marriage until the day of the hearing. He denied he ever threatened his ex-wife and said he had no knowledge of the reported incidents. However, he recalled the Police came to his home about six months after his separation and asked him to stop calling his ex-wife; he said he did not phone her after that event.
In considering the weight I should give these NSW Police narratives, I note:
·there is no objective supporting evidence of Mr Popovski committing an act of family violence, such as an apprehended domestic violence order or any record of a court appearance, in any of the summonsed documents;
·in an undated letter of support by Mr Popovski’s ex-wife, she described him as ‘the most caring and loving husband and father to my daughters and I’ and ‘faithful, peaceful and fair’;[20] and
·Mr Popovski’s oral evidence to the Tribunal was credible, candid and honest: he readily agreed to the facts in relation to his drug use and criminal offending, and equally denied knowledge of these reported incidents of verbal arguments and threats regarding his relationship with his ex-wife.
[20] Exhibit G-G15, page 74.
Mr Popovski’s driving and traffic offences
The ACIC report dated 30 April 2021 listed Mr Popovski’s convictions for driving and traffic-related offences.[21] These include convictions and fines for unlicenced driving; Mr Popovski relevantly told the Tribunal he has not held a valid driver licence since 2002. Most recently, Mr Popovski was convicted in Newtown Local Court on 9 March 2020 of ‘drive vehicle, illicit drug present in blood etc – 1^st offence’ and was fined $1,000 and disqualified from driving.[22]
[21] Exhibit G-G6.
[22] Exhibit G-G6, page 29.
Written warning from the Department
In 2004, Mr Popovski lodged an Application for migration to Australia by a partner form with the (then) Department of Immigration and Multicultural and Indigenous Affairs. He was subsequently advised by the Department in writing that his ‘visa may be liable for refusal under section 501 of the Migration Act’ and asked to respond to questions relating to his criminal and general conduct.[23]
[23] Exhibit G-G18.
Mr Popovski provided a written response to this letter and, on 27 August 2004, the Department wrote to him to advise they had decided on that occasion not to refuse his visa ‘on the grounds of character as it relates to s 501 of the Migration Act’. The letter further stated:
… you are warned that any further conduct bringing you within the provisions of s 501 will lead to the question of visa cancellation being considered and consideration may also be given to refusing any future visa applications. Disregard of this warning will weigh heavily against you if the Minister… considers your case again in the future.
It is important that you note if you ever make a future application for a visa… or complete an incoming passenger card when entering Australia, you are required by law to disclose all of your criminal convictions… [24] [emphasis added]
[24] Exhibit G-G20, page 98.
Despite this warning, Mr Popovski failed to declare he had any criminal convictions on his passenger card when he entered Australia on 25 September 2004. He told the Tribunal that he ‘did not deliberately lie’ when completing this form.[25] I note that Mr Popovski was later convicted of further driving-related offences in Kogarah Local Court on 5 December 2006.[26]
[25] Oral evidence of Z Popovski, 2 May 2022.
[26] Exhibit G-G21 and G-G6, pages 31-32.
Consideration
Having regard to the relevant factors in subparagraph 8.1.1(1) of Direction no. 90, I make the following findings about the nature and seriousness of Mr Popovski’s conduct to date:
·Mr Popovski’s criminal history, as set out in paragraph 25, is primarily characterised by drug, property and dishonesty-related offences. As outlined in paragraph 40, he also has convictions for driving and traffic-related offences.
·There is no evidence that Mr Popovski has committed any violent offences and, for the reasons I set out in paragraph 39, I place very minimal weight on the family violence narratives in the summonsed NSW Police records.
·The Courts have imposed sentences of imprisonment on Mr Popovski; notably, 30 months (with a non-parole period of 10 months) on 15 August 2017 and 12 months (with a non-parole period of four months) on 15 March 2021. These sentences of imprisonment reflect the seriousness of his offending.
·Mr Popovski’s criminal record commenced in 1994 although most of his serious offending has occurred since 2016. There is a cumulative effect of repeated offending and he has continued to offend despite repeated warnings from the judicial system and opportunities for rehabilitation.
·There is some evidence Mr Popovski did not accurately declare his criminal offending to the Department in relation to his visa application in 2004 and returning passenger card completed on 25 September 2004; however, I accept his explanation that this was not deliberate.
·Mr Popovski received a formal written warning from the Department in August 2004 that any further offending could lead to the cancellation of his visa.
Based on the evidence, I am satisfied that the nature and seriousness of Mr Popovski’s conduct weighs against exercising the discretion to revoke the cancellation of his visa.
The risk to the Australian community should Mr Popovski commit further offences or engage in other serious conduct
Subparagraph 8.1.2(2) of Direction no. 90 sets out that, in assessing the risk that may be posed by Mr Popovski to the Australian community, I must have regard to, cumulatively:
·the nature of the harm to individuals or the Australian community if he engages in further criminal or serious conduct; and
·the likelihood of him engaging in further criminal or serious conduct, taking into account:
oinformation and evidence on the risk of him re-offending, and
oevidence of rehabilitation at this time, giving weight to time spent in the community since his most recent offence.
Mr Popovski’s criminal record show he has been primarily convicted for drug, property and stealing offences, and driving and traffic-related offences. Based on his past offending, I am satisfied that if he engages in further criminal or serious conduct, the nature of any harm to individuals or the Australian community would include financial and emotional harm to people and their property, and harm to road users.
I have had regard to summonsed ‘case note report’ records from the NSW Department of Corrective Services that set out discussions between corrections officers and Mr Popovski about his engagement with rehabilitation services following his release from jail in September 2017. I note Magistrate Greenwood in her sentencing remarks on 15 August 2017 identified Mr Popovski’s participation in rehabilitation programs was due to his special circumstances and a requirement of his parole in the community.
NSW Department of Corrective Services ‘case note report’ records show that Mr Popovski was referred to Odyssey House in September 2017 for ‘drug relapse prevention counselling services’.[27] He did not attend and was again referred in October 2017 and subsequently contacted them. Mr Popovski reported that he had an assessment at Odyssey House in November 2017 and was advised he ‘no longer requires further intervention’.[28] A report of contact between a corrections officer and Odyssey House in December 2017 noted that Mr Popovski had told Odyssey House that he had ‘no problems, no triggers/temptations’, his drug use was ‘a one off thing and [he] does not mix with any of the old crowd’.[29]
[27] Exhibit TB-TB1, page 26.
[28] Exhibit TB-TB1, page 31.
[29] Exhibit TB-TB1, page 32.
In February 2018, Mr Popovski was referred to Oakdene House Life Choices program as he had not ‘completed any interventions since his release’ from jail.[30] Records from May 2018 show Mr Popovski did not contact Oakdene House, and in February 2019 (following a relapse of drug use), he was again referred to Odyssey House.
[30] Exhibit TB-TB1, page 36.
At the Tribunal hearing, Mr Popovski said that he did not participate in any rehabilitation programs offered by either Odyssey House or Oakdene House. He said that he did not use ice while in jail and for about 12 months after he was released from jail on parole in 2017 and thought he did not require rehabilitation intervention.
Prior to the hearing, Mr Popovski filed with the Tribunal certificates of course completion in ‘drug and alcohol abuse 101’, ‘healthy relationships’, ‘understanding addictions’ and ‘stress management’.[31] He explained to the Tribunal that he completed these courses in February 2022 while in detention; each course took two hours to complete on-line.
[31] Exhibit A1.
Summonsed records from the NSW Department of Corrective Services include ‘breach of parole reports’ dated 11 May 2018, 30 October 2018 and 21 February 2019. The most recent ‘sentencing assessment report’ is dated 4 March 2021: this report outlines his family and social circumstances and education and employment. Relevantly, this report noted that ‘Mr Popovski appeared to have insight into the link between his substance use and his offending behaviour, however failed to provide any alternate actions for options in the future’; he was ‘assessed at a Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)’.[32] [emphasis in original]
[32] Exhibit TB-TB1, pages 16-17.
In a personal circumstances form completed on 6 April 2022, Mr Popovski explained his offending as follows:
When I was divorced with my wife, I was in a very depressed state, which I still am today. I looked at ways in dealing with my situation after divorce and I turned to drugs in order to self medicate. I became addicted to the drug Ice, which was a cheap and easy drug to obtain. With the added loss of my business, depression and anxiety took control of me. The only comfort I found like so many addicts was using drugs to escape the reality of my depression.[33]
[33] Exhibit TB-TB14, pages 638-639.
He further wrote:
Being incarcerated on a full time basis and now detained at Villawood detention centre being in total 15 months, I have been clean. The reality of the real possibility of being deported from Australia and being separated from my loved one’s is the wake up call I needed. If I was to regain my visa, I will continue to seek help on the outside, and support of my family I know I can break free from the addictions of drugs.[34]
[34] Exhibit TB-TB14, page 639.
Mr Popovski told the Tribunal that he will not reoffend because he now understands ‘where drugs took’ him and has ‘too much to lose’ in relation to his potential removal from Australia and his daughters.[35]
[35] Oral evidence of Z Popovski, 2 May 2022.
Based on the evidence before the Tribunal, I am satisfied that Mr Popovski’s offending behaviour is related to his ice addiction. I also find that, although Mr Popovski has himself identified the link between his offending and his drug use, he has not participated in any substantial rehabilitation programs. This is despite the Court ordering his participation in rehabilitation in March 2017 and corrections officers providing him with multiple opportunities to engage with rehabilitation programs at Odyssey House and Oakdene House between September 2017 and February 2019. Although I accept that Mr Popovski has completed courses on-line in February 2022, I also place very limited weight on this evidence and do not consider these courses are a suitable substitute for a rehabilitation program in the community or counselling services.
I have also had regard to Mr Popovski’s written submissions that his drug use was due to experiencing depression after his divorce. I note there is no evidence before the Tribunal that Mr Popovski has been diagnosed with depression by a medical practitioner; he also informed the Tribunal at his hearing that he has no psychological or physical health concerns.
For these reasons, while I accept Mr Popovski intends not to relapse into using drugs and reoffend in the future, I cannot be satisfied he will not reoffend if he is released into the Australian community. This is based on his history of limited compliance with court-orders and nil engagement with community-based rehabilitation programs.
In considering the harm and potential risk to the Australian community if Mr Popovski were to reoffend in the future, I am also mindful of the cumulative nature and seriousness of his offending behaviour since 2016. I accept that Mr Popovski’s past offending and other conduct has been non-violent, which indicates that the harm resulting from any future offending may not include the types of harm resulting from violent conduct. However, I view any harm that would occur if he engaged in further criminal conduct to be an unacceptable risk to the Australian community.
On balance, I am satisfied the primary consideration of protection of the Australian community from criminal or other serious conduct weighs strongly against exercising the discretion to revoke the mandatory cancellation of Mr Popovski’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY MR POPOVSKI
Subparagraph 4(1) of Direction no. 90 defines family violence as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful’. Examples of behaviour that may constitute family violence include ‘repeated derogatory taunts’.
Direction no. 90, at subparagraph 8.2(1), states ‘the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of…remaining in Australia’. Subparagraph 8.2(3) outlines the factors I must consider in relation to the seriousness of the family violence engaged in by a non-citizen. These factors include:
·the frequency of the non-citizen’s behaviour and whether there is any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence; and
·rehabilitation achieved at the time of my decision since the non-citizen’s last known act of family violence, including:
othe extent to which he accepts responsibility for his conduct;
othe extent to which he understands the impact of his behaviour on his partner and her children; and
oefforts to address factors which contributed to his conduct.
In paragraphs 37 to 38 above, I have outlined evidence based on two ‘narratives’ contained in records summonsed from the NSW Police. In paragraphs 39 and 44 above, I explain my reasons for placing very minimal weight on these narratives.
Overall, in considering the examples of behaviour that constitute family violence as described in subparagraph 4(1) of Direction no. 90, I cannot find there is sufficient evidence to be satisfied that either of these narratives would constitute family violence. On this basis, I am satisfied the primary consideration of family violence has a neutral weighting in exercising the discretion to revoke the decision to cancel Mr Popovski’s visa.
PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Subparagraph 8.3(4) of Direction no. 90 lists the factors I must consider in considering whether cancellation of Mr Popovski’s visa is in the best interests of a minor child (under 18 years old at the time of the refusal) affected by the decision. The relevant factors include:
·the nature and duration of the relationship between the child and Mr Popovski (placing less weight where the relationship is non-parental, there is no existing relationship or long periods of absence, or limited ‘meaningful contact’);
·the extent to which Mr Popovski is likely to play a positive parental role in the future taking into account the length of time until the child turns 18 years old;
·the impact of Mr Popovski’s prior and future conduct, and whether that will have a negative impact on the child;
·the likely effect any separation would have on the child; and
·whether there are other persons who already fulfil a parental role for the child.
Mr Popovski has two daughters who are aged over 18 years old. He wrote in a personal circumstances form completed on 6 April 2022 that his eldest daughter is pregnant and her baby, his first grandchild, is due in May 2022.
At the Tribunal hearing, Mr Popovski confirmed his grandchild is not yet born and there are no other minor children who would be affected by the decision to revoke the mandatory cancellation of his visa.
In circumstances where Mr Popovski’s future grandchild is not yet born and, consequently, he does not currently have a relationship with the child, it is my view that this future child should be considered as an ‘other consideration’ and a potential tie to Australia.
Considering all the evidence in relation to the factors set out in subparagraph 8.3(4) of Direction no. 90, I am satisfied the primary consideration of best interests of minor children in Australia affected by the decision has a neutral weighting in relation to exercising the discretion to revoke the cancellation of Mr Popovski’s visa.
PRIMARY CONSIDERATION 4: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Subparagraph 8.4(1) of Direction no. 90 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In subparagraph 8.4(2) of Direction no. 90, the Minister states that non-revocation of the mandatory cancellation of a visa may be appropriate because character concerns or offences are such that the Australian community would expect the person should not continue to hold a visa; and the Australian community expects the Australian government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct including acts of family violence and/or serious crimes of a violent nature. Further, expectations of the Australian community ‘apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’: subparagraph 8.4(3) of Direction no. 90.

Subparagraph 8.4(4) of Direction no. 90 states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Considering the requirement of paragraph 8.4 and the principles set out in paragraph 5.2 of Direction no. 90, I am satisfied the Australian community expects a non-citizen will obey Australian laws, not cause harm to individuals or the Australian community, and the Australian government should cancel the visa of a non-citizen if they commit serious crimes.
I have set out the nature and seriousness of Mr Popovski’s criminal history and the risk to the Australian community if he were to commit further offences in paragraphs 25–61 above. I am satisfied Mr Popovski’s offences individually are not at the highest level of seriousness and have never involved violence. However, his cumulative history of offending since 2016 is very serious, as shown by the Courts imposing significant sentences of imprisonment on him in 2017 and 2021.
Based on the evidence and having regard to the principles and requirements in Direction no. 90, I find the Australian community would have a low tolerance of Mr Popovski’s conduct and would expect the Government to not allow him to remain in Australia.
I am satisfied the primary consideration of expectations of the Australian community weighs strongly against exercising the discretion to revoke the mandatory cancellation of Mr Popovski’s visa.
OTHER CONSIDERATIONS IN DIRECTION NO. 90
Section 9 of Direction no. 90 lists the other considerations that I must also take into account in deciding whether to revoke the mandatory cancellation of a visa. The other considerations that are relevant in this matter are:
·the extent of impediments if Mr Popovski is removed from Australia; and
·links to the Australian community, namely the strength, nature and duration of Mr Popovski’s ties to Australia.
For completeness, I find no evidence before the Tribunal that shows the considerations of international non-refoulement obligations, impact on victims or impact on Australian business interests are relevant to these proceedings.
Other Consideration: Extent of impediments if Mr Popovski is removed from Australia
The extent of impediments if Mr Popovski is removed from Australia relates to his capacity to reside in, establish himself and maintain ‘basic living standards’ in his ‘home country’ of North Macedonia. Pursuant to subparagraph 9.2(1) of Direction no. 90, I must consider his ‘age and health’, whether there are any ‘substantial language or cultural barriers’, and any ‘social, medical and/or economic support’ available to him in North Macedonia.
Mr Popovski is 53 years old. He has provided no evidence of any medical issues and confirmed to the Tribunal at his hearing that he has no physical health conditions or mental/ psychological conditions, and has been vaccinated against the covid-19 disease. I find Mr Popovski’s current age and health would not impede his removal from Australia.
Mr Popovski was born in and attended school to year 10 in Bitola, Yugoslavia (now known as North Macedonia). He also lived in North Macedonia with his wife and young daughters from September 2003 to September 2004 but has not returned to North Macedonia since 2004. Mr Popovski told the Tribunal he is able to speak, but not read or write, the Macedonian language. I accept there is some evidence of a language barrier (his inability to read or write) in relation to Mr Popovski living in North Macedonia.
Mr Popovski informed the Tribunal that, if he were removed from Australia to North Macedonia, he would find employment as a bricklayer. However, he expressed concern that he does not know anyone in North Macedonia: his parents are deceased; his sister lives in Germany; and his daughters, ex-wife, brother and extended family members are in Australia. I therefore find he would have limited social support available to him in North Macedonia and, further, he would experience distress if he is removed from the social supports – especially his daughters and future grandchild – available to him in Australia.
The Minister filed recent country information on North Macedonia; this included the BTI 2022 Country Report North Macedonia, the European Commission Working Document North Macedonia 2021 Report, and the Report on the Assessment of Drug Dependence Treatment Quality Standards for Drug Dependence Treatment Programs in the former Yugoslavia Republic of Macedonia.[36] I have read and considered these reports, particularly in relation to the current political situation and civil rights, the ratification of international human rights instruments, the impact of the covid-19 pandemic, public health facilities and availability of drug treatment programs, and the level of socio-economic development in North Macedonia.
[36] Bertelsmann Stiftung, BTI 2022 Country Report – North Macedonia, (Report, 2022); European Commission, European Commission Working Document North Macedonia 2021 Report, (Report, 2021); Ministry of Health, Republic of Macedonia, Report on the Assessment of Drug Dependence Treatment Quality Standards for Drug Dependence Treatment Programs in the former Yugoslav Republic of Macedonia (Report, 2017).
Relevant to Mr Popovski’s situation, I note North Macedonia is currently experiencing a relatively high rate of poverty and unemployment, and recently ‘faced the deepest recession in two decades’ due to the covid-19 pandemic.[37] ‘Social safety nets’ exist in North Macedonia, although this is ‘not sufficient to compensate for poverty or other risks such as old age, illness, unemployment, or disability’.[38] Drug dependence treatment is available in North Macedonia through the public health sector.[39]
[37] Exhibit TB-TB11, page 410.
[38] Exhibit TB-TB11, page 412.
[39] Exhibit TB-TB13, page 553.
As a citizen of North Macedonia, I am satisfied Mr Popovski would have access to some economic support and medical care, although I accept this would not be the same level of support that he would access in Australia. I also find that Mr Popovski would need to establish himself, and find accommodation and employment in North Macedonia in order to maintain basic living standards. I accept this will be challenging given his age, the period of time he has been away from North Macedonia, and his lack of social support.
On balance, I am satisfied that the consideration of the extent of impediments if Mr Popovski is removed from Australia weighs in favour of exercising the discretion to revoke the mandatory cancellation of his visa.
Other Consideration: Strength, nature and duration of ties to Australia
In considering the strength, nature and duration of Mr Popovski’s ties to Australia, subparagraphs 9.4.1(1) and (2) of Direction no. 90 stipulate that I must consider any impact of the decision on his ‘immediate family members’ in Australia and I must have regard to:
·how long Mr Popovski has resided in Australia, including whether he arrived as a young child, noting that:
oless weight should be given where he began offending soon after arriving in Australia; and
omore weight should be given to time he has spent contributing positively to the Australian community;
·the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Popovski came to Australia as a young child in 1970, subsequently departed in 1974 and then returned to live in Australia in 1986. He was employed as a bricklayer in the period from 1986 to 2016, which I consider is a positive contribution to the Australian community.
Mr Popovski was first convicted in 1994 for the offence of cultivating a prohibited plant (cannabis) and fined. His criminal record also shows convictions and court-ordered fines for driving and traffic offences in November 2002 and December 2006. However, as I have set out extensively in paragraphs 25–45 above, most of Mr Popovski’s serious offending has occurred since 2016, a date that is 30 years after he arrived in Australia to live and work as a young adult.
Mr Popovski’s immediate family members in Australia comprise his two daughters. I also consider the strength, nature and ties to his future grandchild, his ex-wife, his brother and his extended family of aunts, uncles and cousins living in Australia.
In a personal circumstances form completed on 6 April 2022, Mr Popovski wrote that his relationship with his daughters is ‘foundational’, he sees them ‘every week’ and they speak ‘daily on the phone and…discuss life in general’.[40] He further wrote that his daughters would be ‘devastated’ in the event his visa is cancelled.[41]
[40] Exhibit TB-TB14, page 637.
[41] Exhibit TB-TB14, page 637.
Mr Popovski told the Tribunal that he talks to his daughters daily but has not seen them in person since being jailed and held in detention. He confirmed that he would live with his eldest daughter if he is released into the community.
I have regard to character references (undated and unsigned) before the Tribunal written by Mr Popovski’s younger daughter and his ex-wife. His younger daughter wrote:
…My dad is the kind of person that would give anything and everything to anyone he knew even if it left him with nothing. He is a kind and loving person…
My dad is a decent person at his core. Although he has made mistakes he is willing to do whatever it takes to change the way he is in the future. My dad is a trustworthy and honest person…
I have no doubt that once my father is released he will try and change the wrong he has done by people. I know this because my dad has told me how remorseful he is about the decisions he made…[42]
[42] Exhibit G-G14, page 73.
Mr Popovski’s ex-wife wrote that she has known him since 1996 and described him having ‘a heart of gold’, as ‘the most caring and loving husband and father to my daughters and I’ and ‘faithful, peaceful and fair’; she opined that he ‘will do anything in his power to make up for the mistakes he has made’.[43]
[43] Exhibit G-G15, page 74.
A third written character reference (undated and unsigned) has also been filed from a friend of Mr Popovski’s younger daughter: this reference stated that she has known him since October 2019 and ‘he is a man who happily gives to both of his daughters…he is a selfless man, who if given another chance would be a valuable member of society’.[44]
[44] Exhibit G-16, page 75.
I note that no other written character references were filed with the Tribunal, and none of Mr Popovski’s family members or friends provided oral evidence at the Tribunal hearing.
In view of the evidence before the Tribunal, I consider that Mr Popovski has significant and important familial and social ties to Australia, particularly in relation to his two daughters, his future grandchild and his ex-wife. I also note that Mr Popovski arrived in Australia at a young age and his offending began a significant amount of time after his arrival. For these reasons, I am satisfied the other consideration of strength, nature and duration of ties to Australia weighs for exercising the discretion to revoke the decision to mandatorily cancel Mr Popovski’s visa.
CONCLUSION
I am satisfied that:
·the first primary consideration (protection of the Australian community from criminal or other serious conduct) and fourth primary consideration (expectations of the Australian community) weigh strongly against exercising the discretion to revoke the mandatory visa cancellation; and
·the second primary consideration (whether the conduct constituted family violence) and third primary consideration (best interests of minor children in Australia) have a neutral weighting in relation to revoking the mandatory visa cancellation.
In relation to the other considerations, I find both the other considerations of extent of impediments to Mr Popovski if he is removed from Australia and the strength, nature and duration of ties to Australia weigh for exercising the discretion to revoke the mandatory cancellation of his visa.
Section 7 of Direction no. 90 states that primary considerations should generally be given greater weight than other considerations. I find no evidence before the Tribunal to suggest this weighting should not apply to the circumstances of Mr Popovski.
Weighing all the relevant primary considerations and other considerations, I am satisfied there is not another reason to revoke the original decision to cancel Mr Popovski’s visa.
For these reasons, the decision made by a delegate of the Minister on 24 February 2022 to not revoke the mandatory cancellation of Mr Popovski’s visa is affirmed.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.....................................[SGD]...................................
Associate
Dated: 13 May 2022

Date(s) of hearing: 2 May 2022

Applicant: In person

Solicitors for the Respondent: Mr M Sheedy, Sparke Helmore

[2022] AATA 1159

13 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	2 May 2022
Applicant:	In person
Solicitors for the Respondent:	Mr M Sheedy, Sparke Helmore