PQSM and Minister for Home Affairs (Migration)

[2019] AATA 603

PQSM and Minister for Home Affairs (Migration) [2019] AATA 603 (28 March 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2019/0072
GENERAL DIVISION  )

Re: PQSM
Applicant

And: Minister for Home Affairs
Respondent

CORRIGENDUM

TRIBUNAL:  Deputy President Boyle

DATE OF CORRIGENDUM:           10 April 2019

PLACE:            Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the reasons for decision of 28 March 2019 in this application as follows:

1. Paragraph 25 is to be replaced with:

Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3 of Direction 79, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.

...................................................................

Deputy President

Division:GENERAL DIVISION

File Number:           2019/0072

Re:PQSM  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date:28 March 2019

Place:Perth

The Tribunal affirms the decision by the delegate of the Respondent, made under
s 501CA(4) of the Migration Act 1958 (Cth) to refuse to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa under s 501(3A) of the Act.

.........................[sgd]...............................................

Deputy President Boyle

CATCHWORDS

MIGRATION – Migration Act 1958 (Cth) – Mandatory visa cancellation – s 501CA(4) – sexually based offence involving a child – Direction 79 – primary and other considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – extensive criminal record – other considerations – Australia’s non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – weight to be given to the primary and other considerations – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) – ss 48A, 48A(1), 48A(1B), 197C, 198, 417, 499(1), 499(2A), 500(1)(ba), 501(1), 501(2), 501(3A), 501(6), 501(6)(a), 501(6)(e), 501(7), 501(7)(c), 501(7A), 501CA, 501CA(4)

Community Protection (Offender Reporting) Act 2004 (WA) – s 63(1)

CASES

Afu and Minister for Home Affairs [2018] FCA 1311

CZCV and Minister for Home Affairs [2019] AATA 91
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
Doan and Minister for Home Affairs [2019] AATA 169
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Le and Minister for Home Affairs [2018] AATA 4126
Margach and Minister for Home Affairs [2019] AATA 353
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Nguyen and Minister for Home Affairs [2018] AATA 3726
PRHR and Minister for Immigration and Border Protection [2017] AATA 2782
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296; [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Zyaran and Minister for Home Affairs [2018] AATA 3785

SECONDARY MATERIALS

Department of Home Affairs Standard Q&A Report Mozambique: Cl190124122016809 – Security situation

Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Immigration and Border Protection, 22 December 2014)

Minister for Immigration and Border Protection, Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 
s 501CA (Department of Immigration and Border Protection, 20 December 2018) – Paras 2, 6.1, 6.1(2), 6.2, 6.3, 6.3, 7(1)(a), 8, 8(3), 8(4), 8(5), 13(2), 13.1, 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(h), 13.1.2(1), 13.1.2(1)(a), 13.2, 13.2(4), 13.3, 13.3(1), 14, 14.1, 14.1(6), 14.2, 14.2(1)(a)(i), 14.3, 14.4, 14.5(1),
Part C

REASONS FOR DECISION

Deputy President Boyle

28 March 2019

THE APPLICATION

1. This is an application for the review of the decision by the delegate of the Respondent made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) to refuse to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa (the visa) under s 501(3A) of the Act (R4, G10/37).

2. The application for review is made in accordance with s 500(1)(ba) of the Act, which allows for an application to be made to the Administrative Appeals Tribunal for a review of a decision made under s 501CA(4) of the Act.

3. The Applicant has been sentenced to, inter alia, a term of imprisonment exceeding
   12 months. The Applicant accordingly has a substantial criminal record pursuant to
   s 501(7)(c) of the Act and does not meet the character test on the basis set out at
   s 501(6)(a) of the Act. The Applicant also has a substantial criminal record as defined under s 501(6)(e) as he was convicted of a sexually based offence involving a child.

4. The Applicant concedes (A1 at paragraph 1), and the Tribunal finds, that the Applicant does not pass the character test.

   THE ISSUE

5. The issue on review is whether there is ‘another reason’ why the mandatory cancellation of the Applicant’s visa should be revoked pursuant to s 501CA(4)(b)(ii) of the Act.

   BACKGROUND

6. The Applicant is a 43 year old national of Mozambique who first arrived in Australia at age 19 on 7 March 1995. He has not departed Australia since (R4, G40/228). On
   22 August 1995 the Applicant was granted a Protection (subclass 866) visa and on
   5 March 1998, he was granted the visa (G40/228).

7. The Applicant’s National Police Certificate dated 23 November 2017 (R4, G11/56) indicates that on 14 February 2003 the Applicant was convicted of sexual penetration without consent in circumstances of aggravation and, on the same day, sentenced to a term of imprisonment of six years. The maximum penalty for the offence was 14 years (R4, G12/98). The victim of the crime was 14 years of age (Judge’s sentencing remarks, R4, G12/100).

8. On 7 June 2005 the Applicant’s visa was cancelled under s 501(2) of the Act (R4,G41/229). That decision was set aside by the Tribunal in September 2005.

9. On 6 April 2017 the Applicant was convicted of breach of suspended sentence (order of 29 July 2016) and sentenced to nine months imprisonment. He was also on that date convicted of failing to comply with reporting obligations contrary to s 63(1) of the Community Protection (Offender Reporting) Act 2004 (WA) and sentenced to six months imprisonment to be served concurrently with the nine month term for the breach of the suspended sentence (R4, G11/53).

10. On 16 May 2017, following the Applicant’s convictions on 6 April 2017, the Respondent’s department issued the Applicant with a notice that the visa had been cancelled under s 501(3A) of the Act (R4, G3/9-25). The Applicant made representations seeking revocation of the cancellation (R4, G18/129-133).

11. On 21 December 2018 a delegate of the Respondent decided under s 501CA(4) of the Act not to revoke the mandatory cancellation (R4, G10/37).

    THE APPLICANT’S CRIMINAL HISTORY

12. The Applicant’s criminal history, as disclosed by the National Police Certificate (R4, G11) and the Western Australian Police History for Court – Criminal and Traffic (R3/8-14), is as follows:

Jurisdiction	Offence date	Result date	Offence	Result
WA	12/12/95	12/03/97	Assault common [Two Counts]	12 months ISO (adult) 60 hours CSO cumulative each charge
WA	13/12/95	26/05/98	Unlawful wounding	12 months imprisonment Sentence suspended for 2 years
WA	Unknown	12/03/97	Resist arrest	6 months CRO (adult) $100
WA	12/01/00	18/01/00	No motor drivers licence; s 49(1) Road Traffic Act 1974	Fine – $120 Disqualified from holding/ obtaining motor drivers licence 3 months M and conc
WA	12/01/00	18/01/00	Excess 0.08%;>=0.08% but < 0.09%; s 64(1) Road Traffic Act 1974; method is breath	Fine – $400 Disqualified from holding/ obtaining motor drivers licence 4 months
WA	29/10/01	10/12/01	Disorderly conduct	$150
WA	2001	14/02/03	Sexual penetration without consent – aggravated	6 years imprisonment
WA	29/05/07	28/06/07	Failure to comply with reporting obligations; s 63 Community Protection (Offender Reporting) Act 2004	Fine – $1,200
WA	22/09/09	26/11/09	Failure to comply with reporting obligations; s 63(1) Community Protection (Offender Reporting) Act 2004	Fine – $1,500
WA	31/12/09	22/09/10	Failure to comply with reporting obligations; s 63(1) Community Protection (Offender Reporting) Act 2004	Fine – $400
WA	22/06/10	22/09/10	Failure to comply with reporting obligations; s 63(1) Community Protection (Offender Reporting) Act 2004	Fine – $400
WA	31/08/11	17/10/11	No authority to drive – never held; no motor drivers licence; s 49(1)(a) Road Traffic Act 1974	Fine – $75 Motor drivers licence disqualified 3 months
WA	31/08/11	17/10/11	Exceed speed limit in a school zone; between 10 and 19 km/h; s 11(6) Road Traffic Code 2000; no motor drivers licence; alleged 54 in 40 zone	Fine – $150
WA	28/09/11	30/11/11	Exceed 0.05g alcohol oer 199ml of blood; >= 0.05g/100ml but < 0.06g/100ml; s 64AA(1) Road Traffic Act 1974; method is breath; no motor drivers licence	Fine – $500 Motor drivers licence disqualified 3 months (s 51); mandatory - concurrent
WA	28/09/11	30/11/11	Failed to stop when called upon; s 53(1)(b) Road Traffic Act 1974; no motor drivers licence	Fine – $400
WA	28/09/11	30/11/11	No authority to drive – never held; s 49(1)(a) Road Traffic Act 1974; no motor drivers licence	Fine – $250 Motor drivers licence disqualified 3 months
WA	12/10/11	30/11/11	Failed to stop when called upon; s 53(1)(b) Road Traffic Act 1974; no motor drivers licence	Fine – $400
WA	12/10/11	30/11/11	No authority to drive (fines suspended); s 49(1)(a) and (3)(d) Road Traffic Act 1974; no motor drivers licence	Fine – $300
WA	12/10/11	30/04/12	Steal motor vehicle (as defined in s 371A Criminal Code); s 378A Criminal Code WA	Fine – $400
WA	01/11/11	30/11/11	Breach of bail (failure to appear soon after); s 51(1) Bail Act 1982 (WA)	Fine – $250
WA	13/06/12	22/08/12	Failed to comply with reporting obligations; s 63(1) Community Protection (Offender Reporting) Act 2004	Fine – $500
WA	02/09/12	27/11/12	Common assault in circumstances of aggravation or racial aggravation; s 313(1)(a) Criminal Code (WA)	Community based order; 8 months concurrent from 27/11/12
WA	17/01/13	18/03/13	Person who breaches CRO or community order without reasonable excuse; s 131(1) Sentencing Act 1995	Fine – $100
WA	02/09/12	18/03/13	Breach of community based order under s 62 Sentencing Act 1995 of 27/11/12	Community based order: sustain previous order
WA	02/09/12	09/08/13	Breach of CBO (order of 18/05/13)	Fine – $1000
WA	23/03/13	26/04/13	Unlicensed vehicle (permit use); s 15(3) Road Traffic Act 1974; no motor drivers licence	Fine – $150
WA	20/06/13	09/08/13	Person who breaches CRO or community order without reasonable excuse; s 131(1) Sentencing Act 1995	No further order
WA	16/12/13	21/01/14	Breach of violence restraining order; s 61(1) Restraining Orders Act 1997	Fine – $500
WA	15/01/14	05/03/14	Possess a prohibited drug (methylamphetamine); s 6(2)R Misuse of Drugs Act 1981 (WA)	Fine – $400
WA	13/02/14	18/03/14	Possessing stolen or unlawfully obtained property s 428(1) Criminal Code (WA)	Fine – $700
WA	17/04/12	14/08/14	Stealing; s 378 Criminal Code (WA)	Fine – $250
WA	09/06/14	15/08/14	Failed to comply with reporting obligations; s 63(1) Community Protection (Offender Reporting) Act 2004	Suspended imprisonment order: 8 months concurrent Suspended 12 months from 15/08/14 - concurrent
WA	09/06/14	30/04/15	Breach of suspended sentence (order of 15/04/15)	Fine – $300 SIO to continue
WA	09/06/14	10/06/15	Breach of suspended sentence (order of 30/04/15)	Fine – $200 SIO to continue
WA	08/08/14	14/08/14	Breach of bail (failure to appear soon after); s 51(1) Bail Act 1982 (WA)	Fine – $150
WA	07/02/15	24/02/15	No authority to drive (fines suspended); s 49(1)(a) and 3(d); no motor drivers licence	Fine – $400
WA	05/03/15	30/04/15	Possess a prohibited drug (cannabis); s 6(2)B Misuse of Drugs Act 1981 (WA)	Fine – $500
WA	24/03/15	10/06/15	No authority to drive – never held and disqualified; s 49(1)(a) and (3)(d) Road Traffic Act 1974; no motor drivers licence	Fine – $300 Motor drivers licence disqualified 9 months - cumulative
WA	17/05/15	10/06/15	Breach of violence restraining order; s 61(1) Restraining Orders Act 1997	Fine – $300
WA	20/10/15	13/01/16	Failed to comply with reporting obligations; s 63(1) Community Protection (Offender Reporting) Act 2004	Suspended imprisonment order: 9 months concurrent Suspended 1 year from 13/01/16 – concurrent
WA	20/10/15	29/07/16	Breach of suspended imprisonment order of 13/01/16	Fine – $200 SIO to continue
WA	20/10/15	06/04/17	Breach of suspended sentence (order of 29/07/16)	Imprisonment: 9 months concurrent from 06/04/17 – concurrent
WA	02/12/15	13/01/16	Breach of bail (fail to appear soon after); s 51(2) Bail Act 1982 (WA)	Fine – $800
WA	23/05/16	29/07/16	Used an unlicensed vehicle: s 4(2) Road Traffic (Vehicles) Act 2012; no motor drivers licence	Fine – $200
WA	23/05/16	29/07/16	Drove or permitted vehicle with false plate to be driven; s 36(2)(e) Road Traffic (Administration) Act 2008; no motor drivers licence	Fine – $300
WA	23/05/16	29/07/16	No authority to drive suspended; s 49(1)(a) and (3)(c) Road Traffic Act 1974; no motor drivers licence	Fine – $1,000 Motor drivers licence disqualified: 9 months – cumulative
WA	01/09/16	06/04/17	Failed to comply with reporting obligations; s 63(1) Community Protection (Offender Reporting) Act 2004	Imprisonment: 6 months concurrent from 06/04/17 - concurrent
WA	02/01/17	01/02/17	Possess a prohibited drug (cannabis); s 6(2)B Misuse of Drugs Act (WA) 1981	Fine – $600
WA	25/02/2017	03/04/17	Possess a prohibited drug (cannabis); s 6(2)B Misuse of Drugs Act 1981 (WA)	Fine - $600
WA	25/02/17	03/04/17	Without lawful excuse trespassed on a place; s 70A(2) Criminal Code (WA)	Order for dest. Fine – $600 (global)

LEGISLATIVE FRAMEWORK

1. Section 501(3A) of the Act provides that:

   (3A)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.

2. Section 501(6) of the Act provides that:

   (6)For the purposes of this section, a person does not pass the character test if:

   (a)the person has a substantial criminal record (as defined by subsection (7))...

3. A ‘substantial criminal record’ is defined by s 501(7) of the Act as follows:

   (7)For the purposes of the character test, a person has a substantial criminal record if:

   (a)the person has been sentenced to death; or

   (b)the person has been sentenced to imprisonment for life; or

   (c)the person has been sentenced to a term of imprisonment of 12 months or more; or

   (d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more...

4. Section 501(7A) of the Act provides clarification for when a person is sentenced to concurrent sentences of imprisonment:

   (7A)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 of the terms.

5. The Tribunal also notes s 501(6)(e) of the Act which provides that a person is taken not to pass the character test if:

   (e)a court in Australia or a foreign country has:

   (i)     convicted the person of one or more sexually based offences involving a child; or

   (ii)    …

6. Section 501CA of the Act further provides:

   (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

   (2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

   (a)would be the reason, or a part of the reason, for making the original decision; and

   (b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

   (3)As soon as practicable after making the original decision, the Minister must:

   (a)give the person, in the way that the Minister considers appropriate in the circumstances:

   (i)     a written notice that sets out the original decision; and

   (ii)     particulars of the relevant information; and

   (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

   (4)The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)     that the person passes the character test (as defined by section 501); or

   (ii)     that there is another reason why the original decision should be revoked.

   Ministerial Direction no. 79

7. Section 499(1) of the Act provides that the Minister may give written directions as follows:

   (1)The Minister may give written directions to a person or body having functions or powers under this Act … if the directions are about:

   (a)the performance of those functions; or

   (b)the exercise of those powers.

8. Further, s 499(2A) of the Act states that ‘[a] person or body must comply with a direction under subsection (1).’

9. On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).[1] The commencement date for operation of Direction 79 was 28 February 2019 (Paragraph 2 of Section 1 of Direction 79).

   [1] Minister for Immigration and Border Protection, Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Department of Immigration and Border Protection, 20 December 2018)

1. Paragraph 6.1 sets out the objective of Direction 79. Paragraph 6.1(2) relevantly provides:

   (2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test… Where the discretion to refuse to grant … a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse … the visa given the specific circumstances of the case.

2. Paragraph 6.2 of Direction 79 provides general guidance as follows:

   (1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

   (2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

   (3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

3. Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501(1) of the Act, including the Tribunal:

   (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)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 to 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 these 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 should 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 their visa application refused.

4. Paragraph 7(1)(a) of Direction 79 provides that, informed by the principles set out in paragraph 6.3 of Direction 79, the decision-maker (in this case the Tribunal) must take into account the primary considerations in Part A or Part B of Direction 79. In the present case Part C, which identifies the considerations relevant to determining whether to exercise the discretion to revoke the mandatory cancellation of the non-citizen’s visa, is the relevant Part.

5. Paragraph 13(2), which is in Part C of Direction 79, provides:

   (2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

   a)Protection of the Australian community from criminal or other serious conduct;

   b)The best interests of minor children in Australia;

   c)Expectations of the Australian Community.

6. Paragraph 14 of Direction 79 provides:

   (1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

   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.

7. Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:

   (1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

   (2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

   (3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

   (4)Primary considerations should generally be given greater weight than the other considerations.

   (5)One or more primary considerations may outweigh other primary considerations.

   THE HEARING

8. The application was heard on 18 March 2019. The Applicant appeared on his own behalf and the Respondent was represented by Ms Tattersall.

9. The following people gave evidence at the hearing:

   (a)the Applicant;

   (b)the Applicant’s son; and

   (c)the Applicant’s partner.

10. The following documents were admitted into evidence:

    ·

    Applicant’s Statement of Facts, Issues and Contentions received

    
    

    18 February 2019 with attachments (Exhibit A1);

    ·Documents from the 2005 Tribunal decision and a Notice of Decision for Freedom of Information for the 2005 Tribunal decision (Exhibit A2);

    ·Applicant’s reply to the Respondent’s Statement of Facts, Issues and Contentions dated 13 March 2019 (Exhibit A3);

    ·Respondent’s Statement of Facts, Issues and Contentions dated 11 March 2019 with annexures A and B (Exhibit R1);

    ·Sentencing Transcript from the District Court of Western Australia and an indictment (Exhibit R2);

    ·Documents produced under summons from the Commissioner of Police, Central Law Courts, Joondalup Magistrate’s Court and the Midland Magistrate’s Court received 13 March 2019 (Exhibit R3);

    ·Section 501 – G Documents (G1-G45, pages 1-270) (Exhibit R4);

    ·Section 501 – Supplementary G Documents (SG1-SG14. pages 1-265) (Exhibit R5); and

    ·Standard Q&A Report: Mozambique (Exhibit R6).

11. Written closing submissions were provided by the parties after the hearing as follows:

    (a)Respondent on 20 March 2019; and

    (b)Applicant on 24 March 2019.

    CONSIDERATION

12. As noted above, it is not disputed that the Applicant does not pass the character test, therefore, the only issue for resolution is whether there is ‘another reason’ why the mandatory cancellation of the Applicant’s visa should be revoked pursuant to

    
    

    s 501CA(4)(b)(ii) of the Act.

    PRIMARY CONSIDERATIONS

13. Paragraph 13(2) of Direction 79 provides:

    (2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)The best interests of minor children in Australia;

    c)Expectations of the Australian community.

    First primary consideration: Protection of the Australian Community from criminal or other serious conduct (13(2)(a))

14. Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:

    (1)…should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non­citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

    (2) Decision-makers should also give consideration to:

    a)The nature and seriousness of the non-citizen’s conduct to date; and

    b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    Nature and seriousness of the conduct (paragraph 13.1(2)(a))

15. Paragraph 13.1.1(1) of Direction 79 provides:

    (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

    a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

    e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    f)The cumulative effect of repeated offending;

    g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

    i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

16. On any criterion, the Applicant’s criminal record is extensive and serious. He has been convicted of 51 offences. Particularly serious are the Applicant’s following violent offences:

    (a)unlawful wounding for which the Applicant was sentenced to a 12 month imprisonment, sentence suspended for two years (R4, G11/57);

    (b)assault common (two counts) (sentence 12 months intensive supervision order and 60 hours community service order) and resist arrest (sentence six months conditional release order) (R4, G11/57);

    (c)disorderly conduct for which the Applicant was fined $150 (R4, G11/56);

    (d)sexual penetration without consent in circumstances of aggravation for which the applicant was sentenced to six years imprisonment (R4, G11/56);

    (e)

    common assault in circumstances of aggravation or racial aggravation for which the Applicant was sentenced to a community based order of eight months

    
    

    (R4, G11/55);

    (f)

    breach of violence restraining order for which the Applicant was fined $500

    
    

    (R4, G11/55); and

    (g)

    breach of violence restraining order for which the Applicant was fined $300

    
    

    (R4, G11/54).

17. The relevant facts (from the police records including Detected Incident Reports and Statements of Material Facts included in R1, judge’s sentencing remarks in R2 and documents summonsed from and produced by the Western Australian Police in R3) behind the above offences are as follows:

    (a)The ‘unlawful wounding’ offence occurred on 13 December 1995 (R4, G14/113). The Applicant assaulted the victim with a knife following an altercation after the victim had ‘gone to the defendant’s place’ to get his girlfriend (R4, G13/106). The Applicant denied the offence suggesting that loose flyscreen wire scratched the victim and that he had accidently cut the victims arm with a piece of glass whilst trying to pull him away from his room-mate (R4, G14/113). The Applicant otherwise suggested that he acted in self-defence only.

    (b)

    The ‘common assault (two counts) and resist arrest’ with a conviction date of

    
    

    12 March 1997. No police or other records appear to have been produced in relation to the resist arrest charge. It is, apparently, referred to in passing in the magistrate’s sentencing on 26 May 1998 on the unlawful wounding charge where Thobaven SM observed (R4, G13/106):

    Since then [the incident that gave rise to the unlawful wounding charge] he’s been convicted of assault and resisting arrest.

    There is, however, a statement of material facts (R3/42) and a pre-sentence report (R4, G14/113) which refer to an incident on 12 December 1995 which, according to the pre-sentence report, gave rise to two charges of assault. That pre-sentence report describes the circumstances giving rise to those charges as being describe by the Applicant as:

    …on 12.12.95 he and [omitted] went with their respective girlfriends, the complainants, to visit a friend. Whilst there, PQSM’s girlfriend [omitted] wanted to go for a walk as it was a warm night and went downstairs wearing PQSM’s cap. PQSM reports following her downstairs to recover his cap. He claims that a big drunk European man began to say that [omitted] was his girlfriend and that she was to go with him. PQSM claims that an altercation ensued and that after he was throttled and his cloths torn PQSM’s attacker left and PQSM and [omitted] returned to his block of flats where they parted…

    PQSM reports not knowing the details of the Assault charges until his present lawyer made him aware of them… Police confirmed that PQSM had not been questioned to date in relation to the assault offences.

    When cross-examined at the hearing the Applicant said that he did not remember this incident (Transcript at 41).

    A Western Australian Police statement of material facts dated 14 December 1995 (R3/42) describes an incident on 12 December 1995, the day before the incident which resulted in the unlawful wounding charge and conviction, as follows:

    1.At about 10.30 on Tuesday December 12, 1995, the defendant was involved in a dispute with an unknown person at a block of flats in … [suburb 1]. This dispute attracted a number of onlookers, two of whom were the complainants, who were in attendance at a friend’s flat in the building.

    The defendant produced a kitchen knife which he began to waive around at those present whilst yelling incoherently.

    The complainant [omitted] [the Tribunal notes that this complainant is the person who the Applicant identified as his girlfriend in the pre-sentence report quoted above], who knows the defendant as [omitted], called for the defendant to put the knife down on a number of occasions, however the defendant turned his attention towrds [sic] her and lunged at her with a downward stabbing motion.

    The complainant backed off but the knife struck her on the left side of her upper chest. The knife did not puncture the complainant’s skin or cause any other physical injury.

    2.The defendant then turned his attention towards the complainant [omitted]. He slashed the knife at her a number of times and then lunged at her, once again in a downwards stabbing motion. The knife struck the complainant on the left breast but caused no wound or injury.

    (c)The ‘disorderly conduct’ offence occurred on 29 October 2001. The Applicant walked up to another male at the Perth Railway Station and struck him with left and right clenched fists to the face. The Applicant admitted the offence stating ‘he stole my CD’s at a party. I lost my temper’ (WA Police reports R3/114).

    (d)

    The ‘sexual penetration without consent in circumstances of aggravation’ offence occurred in 2001.The Applicant was at a train station and struck up a conversation with the victim who advised him that she was 16 years of age (she was in fact

    
    

    14 years of age) and offered to give her amphetamines if she went back to his friend’s house. Shortly after arriving at his friend’s house the victim and the Applicant went into a bathroom, the Applicant pulled down the victim’s pants and had sex with her without consent. He withdrew his penis and ejaculated into her knickers (R4, G12/100-101). The Applicant was convicted of the offence following a jury trial and at trial maintained that they had not had penetrative vaginal sex. Healy DCJ in sentencing said:

    Your evidence on the video – you didn’t give evidence at trial as was your right – was that what had occurred was by consent that you had paid her for sex and she had given you a head job and that was not accepted by the jury. I think that the evidence that you led in relation to how she gave you a head job would not have explained the presence of semen inside her knickers. The age of the girl at the time, as I said, was 14 going on 15. You were born in 1976. In 2001 you were 26 years old. That is a 10-year difference in your difference in your ages at that time although on the video you looked perhaps a bit younger than your actual age in years (R4, G12/101).

    The Applicant was extensively cross-examined in relation to this offence. Relevantly that cross-examination included the following (Transcript at 53-56):

    MS TATTERSALL: Don’t recall that? I think you also stated that the crime was a result of ignorance. Can you explain what you meant by that?

    APPLICANT: What’s that mean? What that means?

    …

    APPLICANT: That time I met the girl was we meet each other in the city, we hang around together and she told me she was 16, turning 17. And we catch a train, we went to – all the way to the end row, we got off, we walked back to station, we bought whatever cigarette and then went to my friend. And then, she was asking for – when is she going to get some danger and then, my friend, he say, “Somewhere I show you guys, one police guy would never find the danger and then, we and [omitted] start kissing and I never knew she was underage. And if I knew it, I never going to go out with her in the first place.

    MS TATTERSALL: You didn’t know she was underage?

    APPLICANT: No. She told me she is 16, 17.

    MS TATTERSALL: But you still had sex with her without her consent?

    APPLICANT: No, we – yes.

    MS TATTERSALL: You accept that you had sex with her without her consent?

    APPLICANT: Yes.

    MS TATTERSALL: Why did you do that?

    APPLICANT: I’m sorry, I never knew she was underage, because that day all day we were hanging around together she keep saying to me, “I’m turning 17” and I believe her because she was a big girl and I believe that she’s 17, 16. And the time I occur it, I never meant to occur it, that’s things that happen. Like the time we catch a train, we go to my friend and we all up each other. And too, I went home three months later, the police come knock at the door, they charged me for that and I never knew about if I done something wrong. How she’s going to go report police station, because if she was not happy that time I left there.

    MS TATTERSALL: You’re saying that it was – - -?

    APPLICANT: I never knew she was young. I never knew law and I’m sorry about that and if I can – - -

    MS TATTERALL: Did you know that rape is a crime or sexual penetration without consent is a crime?

    APPLICANT: No. I never knew that. At the time, I never knew it and I thought she was old enough, you know, and – -

    DEPUTY PRESIDENT: You were charged with – the charge against for penetration of a child was dropped. You were sentenced, you were found guilty of still having sex with her against her consent?

    APPLICANT: Yes. That’s what I said. If I take it back, I’m very sorry. At that time, I never – she lied to me the age. All they were – - -

    DEPUTY PRESIDENT: Forget her age. The point is that you had sex with her without her consent?

    APPLICANT: Yes. No, really, because we agree each other. We agree each other and till the time I left there, she was not (indistinct) and she say, “He just dump me”, you know? So, she went and said – like I never forced her, nothing.

    MS TATTERSALL: Did you have sex with her?---Yes.

    MS TATTERSALL: Why did you tell the court that you didn’t have sex at all?

    APPLICANT: We never had a physical, like in the bed, we were in the toilet kissing and we never went in the bed, sleep in the bed having sex. We done it in the toilet.

    MS TATTERSALL: That’s not my question. I’m asking you whether you had sex with her?

    APPLICANT: Yes.

    MS TATTERSALL: Why did you try to argue before the court that you’d never had sex at all? You argued before the court that she performed oral sex on you and that you’d never had penetrative sex. Why is the story changing?

    APPLICANT: I was – what I remember was not like a physical, like we having sex, we lay in the bed. It was almost like 10 minutes, 5 minutes things, because – - –

    MS TATTERSALL: Did your penis enter her vagina?

    APPLICANT: Yes, I went close to her. Yes.

    MS TATTERSALL: Did it, or did you (indistinct)?

    APPLICANT: I went close to her. I went close to her.

    MS TATTERSALL: I don’t understand what that means?

    MS TATTERSALL: I went close to her. Like, I went in close to her, I never like physical sex with that.

    MS TATTERSALL: You just said your penis entered her vagina?

    APPLICANT: Yes.

    MS TATTERSALL: That’s physical sex, isn’t it? Regardless of where it’s taking place?

    APPLICANT: Yes. Yes.

    MS TATTERSALL: That’s physical sex?

    APPLICANT: Yes. And I’m sorry about that.

    …

    MS TATTERSALL: Regardless of whether you were hanging around together all day, her evidence was that you started to come onto her.  She said, “No”, and tried to push you away and you forcibly had sex with her?  Did she say, “No”?

    APPLICANT: I don’t recall that.

    MS TATTERSALL: Don’t recall?  Did she try and push you away?

    APPLICANT: Yes.

    MS TATTERSALL: You still had sex with her?  Is that correct?

    APPLICANT: Yes.

    …

    MS TATTERSALL:  And what sort of impact do you think that that crime has had on the victim?

    APPLICANT: Yes, bad.

    …

    MS TATTERSALL: When you said you should have known better, are you trying to say that you didn't know at the time that it wasn't appropriate to force yourself on someone?

    APPLICANT: It was not appropriate, and I never planned it, like.  Me and her, we went along each other, and I never think she's under age, and if I knew      

    MS TATTERSALL: I'm not talking about her age, I'm talking about the fact that you sexually penetrated her without her consent.  So are you saying that you weren't aware that that was an inappropriate thing to do at the time?

    APPLICANT: No.

    MS TATTERSALL: You weren't aware.  You had no idea that was not appropriate?

    APPLICANT: No.

    (e)The ‘common assault in circumstances of aggravation or racial aggravation’ offence occurred on 2 September 2012. The Applicant and his then partner had a verbal argument. The Applicant threw an object at his then partner hitting her in the forehead before blocking the exit through which the victim was trying to leave (Statement of Material Facts, R3/119).

    (f)The two counts of ‘breach of violence restraining order’ occurred on separate occasions. One incident occurred on 16 December 2013 when the Applicant broke into the protected premises as, according to him, he ‘needed to get some clothes’ (R3/125). The second incident occurred on 17 May 2015 when the police were called to the house the subject of the violence restraining order and was found by police on the protected premises (R3/85).

1. The Applicant has also been convicted of four drug offences being possession of methylamphetamine on 5 March 2014 (date of offence 15 January 2014), possession of cannabis on 30 April 2015 (date of offence 5 March 2015), possession of cannabis on

   
   

   1 February 2017 (date of offence 2 January 2017) and possession of cannabis on

   
   

   3 April 2017 (date of offence 28 February 2017). The Applicant’s evidence at the hearing in relation to these charges was, contradictory, inconsistent and unsatisfactory. In relation to the methylamphetamine conviction the following exchange occurred (Transcript at

   
   

   35-37):

   MS TATTERSALL: I might read the police records from that night. I’ll summarise them at least. They observed – this is at page 73, Deputy President – they observed a vehicle acting suspiciously, attending various premises for a short time and utilising public telephones. The vehicle was parked up next to a public telephone and a male person alighted from the vehicle. A short time later, police observed a female person meet with the male person and an exchange occurred. The female person left, and the male person met back up with the female and got in the vehicle. Three persons were located in the vehicle, including the accused, who was identified as the male person who met up with the female at the shopping complex and a subsequent search revealed a small clip seal bag containing a white powdered substance, believed to be methamphetamine.

   That suggests that you went to a shopping centre for the purpose of buying drugs?

   APPLICANT: Yes, because she was in the car and she had it and the police, they come, they stop us. She left in the back seat and the car was – I was in the car and she got out – she run and the police, they said, “We have to charge you for that”.

   MSTATTERSALL: There’s no record on the evidence before the police that either she ran and the records state that the bag was found on a search of your person, not on a search of the car, but it says, “A subsequent search of the accused revealed a small clip seal bag”?

   APPLICANT: Yes, after I put it in my socks.

   MS TATTERSALL:  Okay. So, you purchased some drugs and then put them in your socks?

   APPLICANT: Yes, because I was scared the police, they will find it. So, I took it out, it was a small bag, so I put it in my socks and the police, they say, “Take shoes off” and they find a small bag.

   MS TATTERSALL: You knew that drugs are illegal then?

   APPLICANT: I never knew what’s in there, I just – - -

   MS TATTERSALL: Well, you purchased drugs on a street corner?

   APPLICANT: Yes.

   MS TATTERSALL: So, what did you think you were buying? If not drugs, what did you think you were buying?

   APPLICANT: I thought I was buying some ganja.

   …

   MS TATTERSALL: Well, what colour is methamphetamine? This says it’s a white powdered substance?

   APPLICANT: Yes, that’s what they say.

   MS TATTERSALL: So, did that look like marijuana to you?---

   APPLICANT: No, it was methamphetamines.

   MS TATTERSALL: But you still proceeded to buy that substance?

   APPLICANT: No, I never paid for it.

   MS TATTERSALL: This says that an exchange took place. The police records suggest that they watched you exchange something with a female, then pulled you over and they found methamphetamine on your person?

   APPLICANT: Yes, I’m not sure about that.

   …

   DEPUTY PRESIDENT: The report also says:

   When asked what it was, the accused stated that it was amphetamine and that he had just purchased it.

   APPLICANT: -- -Yes, I find in – - -

   MS TATTERSALL:  Do you dispute that?

   APPLICANT: Yes, I find in the car, yes.

   MS TATTERSALL: No, I will read it again. The police report says, “When asked what it was, the accused”, that’s you:

   Stated that it was amphetamine and that he had just purchased it for personal use only.

   APPLICANT: Yes.

   MS TATTERSALL:  Do you recall saying that to the police?

   APPLICANT: Yes.

2. The above exchange and the Applicant’s constantly shifting story is fairly indicative of his evidence in relation to all of the offences on which he was cross-examined. On the cannabis possession charges the Applicant’s evidence was (Transcript at 37-38):

   MS TATTERSALL: The next incident is on 5 March 2015, at page 76 and on that occasion, you were on a footpath and you were spoken to by police, who had cause to search you and as a result of that search, a small clip seal bag containing green leaf material, believed to be cannabis, was located in your wallet. At the time, you made full admissions to the material being cannabis and your explanation was:

   I found it and picked it up and I was going to throw it away or maybe give it to a friend who smokes it.

   APPLICANT: Yes.

   MS TATTERSALL: You would still have the tribunal believe that you found cannabis on the ground?

   APPLICANT: Yes, I was walking on the path and I find a shisha bag and I picked it up. It was – and this matter, it was a little bit of ganja in there and my friend, Luke, he smokes it. So, I was taking it to Luke.

   …

   MS TATTERSLL: Then, on 2 January 2017 – this is at page 98 – you were at your home address. The police attended in relation to another matter and when they entered the kitchen area, a small clip seal bag containing approximately one gram of cannabis was located on the kitchen table. You were cautioned and you made full admissions that the cannabis belonged to you?

   APPLICANT: Yes.

   MS TATTERSALL: Okay. So, you regularly take cannabis, do you?

   APPLICANT: No, on the weekend, maybe friends come and we smoke one cigarette.

   …

   MS TATTERSALL: Approximately how often do you use cannabis?

   APPLICANT: That’s like, bunch of group friend and then like, maybe someone get a little bit, so we smoke it, watching footy.

   MS TATTERSALL: How often would you?

   APPLICANT: On and off fortnight.

   MS TATTERSALL: Every fortnight and you know that’s illegal to smoke cannabis?

   APPLICANT: Yes.

   MS TATTERSALL: But you still do it and that’s despite your reporting obligations and your various bail conditions and all of those sorts of things?

   APPLICANT: Yes, that’s good friend and I should never smoke it, but that friend is, “Come and join me, come on”, like that.

   MS TATTERSALL: Okay, so you were pressured in to smoking cannabis every two weeks?

   APPLICANT: Yes, watching football and like, “Come on, have a puff”, like, yes, just like that.

   MS TATTERSALL: Yes, okay. That obviously didn’t put you off, having been caught with cannabis in your kitchen. It didn’t put you off smoking then, did it? You continued to smoke?

   APPLICANT: Yes, I stopped then.

   MS TATTERSALL: You stopped then. The police records state though, that you were again 35 found to be possessing cannabis on the 28th of February. So, that’s just under two months after you were charged in January 2017. The police records in relation to that one – and these are at page 95 – say that the police attended a residence and arrested you on suspicion of burglary and you consented to police searching your bedroom and in your bedroom was located a small, clip seal bag containing approximately two grams of cannabis. You advised the cannabis was for your own personal use and you paid for it?

   APPLICANT: Yes.

   MS TATTERSALL: Yes. So, it doesn’t really put you off that you’re charged with these offences, does it? You continue to do what makes you happy – what pleases you?

   APPLICANT: I’m sorry, I don’t mean to smoke.

3. He has been convicted of breaching his reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA) on eight occasions (R4, G11/53-56). He was cross-examined on these failures. He conceded that he knew that he had to report as required by the law but explained the numerous failures as him getting mixed up as to the dates or being a late on the required reporting day because of being stuck in traffic (Transcript at 33-34).

4. The Applicant also has an extensive record of driving offences. He has been convicted on eight occasions of driving a motor vehicle without a licence, twice of driving with an excess level of alcohol, twice of driving an unlicensed motor vehicle, once for driving a motor vehicle with false plates, once for exceeding the speed limit in a school zone and twice for failing to stop when called upon by police. He was cross-examined on this extensive driving record as follows (Transcript at 60-61):

   MS TATTERSALL: But on top of that you had a significant number of traffic offences. How can you blame those traffic offences, including driving an unlicensed vehicle, driving without a licence, failing to stop for police; how can you blame that on other people?

   APPLICANT: Like I said, I always – I used to drive a lot to work, and I need to get to work, and I gained a car. I never knew the registration finish. The time I figure out, too late, the police, they say, "You never pay your rego." So I get charged for that.

   MS TATTERSALL: So again, and when it suits you, you break the law. It suited you?

   APPLICANT: I don't mean broke the law

   MS TATTERSALL: … to drive to work so – - – ?

   APPLICANT: I don't mean to broke the law.

   MS TATTERSALL: you got in the car?

   APPLICANT: I don't mean it.

   MS TATTERSALL: How did you not mean it?

   APPLICANT: I don't mean it. That's – - -

   MS TATTERSALL: You knew – did you know that you were unlicensed? Did you know that you had no ability to drive a car?

   APPLICANT: Yes, I never had a licence.

   MS TATTERSALL: Yes. So how did you not mean it when you got in the car?

   APPLICANT: How am I get to work?

   MS TATTERSALL: You got behind the wheel, you turned the ignition, and you drove. It's not a mistake, it's something that you chose to do?

   APPLICANT: I need to get to work to feeding my family. How I going to get to work? If I don't get to work, I can't pay my bill, and that's why I drive. I don't mean to drive – - -

   MS TATTERSALL: How is there no other option but to drive unlicensed?

   APPLICANT: I start work 5.30 in the morning.

   MS TATTERSALL: So get a driver's licence?

   APPLICANT: Yes.

   The Applicant was also cross-examined on some of the other traffic offences as follows (Transcript at 61-62):

   MS TATTERSALL: On top of the driving unlicensed and driving unregistered and your driving under the influences, you've also failed to stop for police. The first incidence of that occurred on 28 September 2011. This is page 100 of the police summonsed records. So on this occasion it's stated that:

   Police positioned themselves directly behind the vehicle and activated the emergency lights on the rooftops of the police vehicle. The accused continued to drive along [Street 1], through the TCL at [Street 2]. Police then activated the emergency siren, along with the still activated emergency lights, signalling the accused to pull his vehicle over for a general traffic matter. The accused slowed, but then drove off at a speed of 45 kilometres per hour. The accused turned right onto [Street 3]and again failed to stop his vehicle. At the time of driving, the front passenger door was being opened and then closed by the female passenger. Pursuing police were approximately 10 metres behind the accused whilst he drove his vehicle. The accused then turned onto [Street 5], right onto [Street 6], attaining a speed of 66 kilometres per hour, before stopping his vehicle in the middle of the roadway near the intersection with [Street 7]. The accused has alighted from his vehicle and run off down a laneway to [Street 8], where he is apprehended hiding behind a tree on a nature reserve. The accused stated he didn't stop because he didn't hold a driver's licence and knew he would be in trouble and wanted to make it to his sister's house.

   MS TATTERSALL: Do you remember that incident?

   APPLICANT: I needed escape the police, that's why I stopped the car and I run, because I know if the police, they stop me, they know I had no driver licence, and they will charge me, you know, and impound the car. So I stopped the car and I try hide in the corner, and the police, they saw me, say, "Why are you running for?" And I say, "I'm scared of police and I don't got driver licence." They say, "You don't have to run. Just let us know," and they say, "We will give you summons." And, "Get someone else come take the car to drive it."

   …

   MS TATTERSALL: Then some three weeks later, on 12 October 2011, this is at page 121, the police records state that:

   Police in a fully marked sedan pulled in behind the accused to have him stop for the purpose of an RBT and driver's licence check. The accused immediately turned left onto [Street 9] and accelerated heavily away. Police activated the emergency lights and siren on their vehicle. The accused braked heavily and skidded as he turned left into [Street 10]. The accused again accelerated heavily momentarily before turning right onto [Street 11]. In [Street 12] the accused drove up onto a residential verge. Police tactically positioned their vehicle close to the driver's door of the accused's vehicle. The accused opened his door, ramming it into the police vehicle. He squeezed between both vehicles, before running away down [Street 13] and along [Street 14]. Police pursued the accused on foot and apprehended him approximately 100 metres away from where he egressed the vehicle he was driving.

   MS TATTERSALL: Do you remember that incident?

   APPLICANT: Yes, I remember that. I bought a Commodore. And the police, they try stop me. I knew the police, they will stop me, because I never had a driver licence, and I was going to my sister- in-law. And I stop the car and I run to the alleyway and the police follow me to the alleyway, say, "Why you running? Who this car is?" I say, "That's my car." And then they say, "Why you get this expensive car?" I say, "I bought it." And they say, "Why you running, then?" I say, "I'm scared of police because I got no driver licence." And they tell me, "Leave the car. You can drive no more. Get someone come pick up the car to take home." And they will send me summons to go court for that.

   At this point of the cross-examination the issue of the stealing a motor vehicle charge came up and the following exchange took place (Transcript at 62-63):

   MS TATTERSALL: So the car that you were driving, is that also the car that you were found to have stolen?

   APPLICANT: No.

   MS TATTERSALL: No? Different car, was it?

   APPLICANT: Yes. …The car they saying I'm stealing, that's from sister-in-law.

   MS TATTERSALL: The police records – and I will read the rest of the police records out. This is in relation to the steal motor vehicle charge:

   Inquiries ascertained that the Mitsubishi Magna, registration (redacted) being driven by the accused had been stolen from a car park in [Suburb 2] on 30 September 2011. A digitally recorded interview was subsequently conducted with the accused at the [Suburb 3] Police Station. In an explanation the accused stated that he was not responsible for stealing the vehicle. He did however state that he had been picked up in the vehicle some time before being stopped by police by a friend, who was known only as (redacted). The accused and (redacted) and a number of others attended a nearby address where several drinks were consumed. Whilst at the address, the associate of (redacted) was seated in the driver's seat of the Mitsubishi Magna with the 15 accused seated nearby. When the associate went into the house the accused jumped into the driver's seat and drove off into [Suburb 1], where he intended to buy beer and cigarettes before driving home. The accused made further admissions that he was aware that (redacted) was not the owner of the vehicle.

   MS TATTERSALL: So you were convicted of steal motor vehicle in relation to that. The police records also indicate that you weren't on your way to your sister's house, you were buying beer and cigarettes before going home?

   APPLICANT: No, I don't recall that.

5. How are these offences and the Applicant’s criminal history to be viewed in light of Direction 79? Firstly, the Applicant has been convicted of a sexual offence against a child which must be viewed very seriously (Direction 79, paragraphs 13.1.1(1)(a) and (b)). The particular seriousness of the sexual penetration without consent in circumstances of aggravation offence is also demonstrated by the comments of the sentencing judge who stated (R4, G12/103):

   In my view these offences always are viewed very seriously by the court because of the very nature of the offence being an invasion of another person’s body and that in itself is a violent offence and imprisonment is inevitable, as you realise, for this offence. It is clear to me that you took advantage of this young woman who was certainly somebody who was in need of care rather than being taken advantage of at the time by somebody who was older than her.

6. Secondly, the Applicant has been convicted of a number of violent offences including unlawful wounding and disorderly conduct which the Respondent contends should be considered serious (Direction 79, paragraph 13.1.1(1)(a)). The Tribunal agrees.

7. Thirdly, the Applicant committed common assault in circumstances of aggravation or racial aggravation which must also be viewed very seriously (Direction 79, paragraphs 13.1.1(1)(a) and (b)).

8. Fourthly, regard must also be had to the fact that the Applicant has been sentenced to terms of imprisonment for his offending (Direction 79, paragraph 13.1.1(1)(d)). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Accordingly, where a Court has sentenced an offender to terms of custodial imprisonment, this must be viewed as a reflection of the objective seriousness of the offences involved.

9. Fifthly, in addition to the more serious violent and sexual offenses set out above, the Applicant has been convicted of stealing offences, drug offences, driving offences (including driving without authority and driving under the influence) as well as contraventions of reporting obligations, restraining orders and community orders. This constitutes frequent offending the cumulative effect of which must be considered (Direction 79, paragraphs 13.1.1(1)(e) and (f)).

10. Sixthly, the Applicant has re-offended on numerous occasions following the original cancellation of his visa in June 2005 (Direction 79, paragraph 13.1.1(1)(h)). In this regard the Tribunal notes the ‘warning’ of Deputy President Hotop in his decision in September 2005 when the cancelation of the Applicant’s visa was reversed that:

    The Tribunal would add, however, that if the applicant were to commit another serious offence in the future, the balance of relevant considerations may well shift such that it becomes appropriate to cancel the visa. It is, therefore, the applicant’s responsibility to ensure that his future conduct does not again place his right to remain in Australia in jeopardy.

11. The Applicant clearly took no head of Deputy President Hotop’s clear message. He has been convicted of 43 offences since that warning was given.

12. The principles identified in just about every subparagraph of paragraph 13.1.1(1) apply in the Applicant’s case. These weigh very heavily against the revocation of the cancellation of the visa.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))

13. A decision-maker should have regard to the following principle, described in paragraph 13.1.2(1) of Direction 79 as follows:

    (1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    a.The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b.The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    Nature of harm to individuals or the Australian community (13.1.2(1)(a))

14. Applying paragraph 13.1.2(1)(a) of Direction 79, the harm that would be caused if the Applicant were to repeat his offending behaviour is obvious and serious, particularly if he were to repeat the sexual penetration without consent offence, the unlawful wounding offence or any of the other violent offences of which he has been convicted. Further, the consequences of the other types of offences if they were to be repeated would also be significant. The Applicant has been convicted of drink driving offences on two occasions, driving without a licence on eight occasions and failing to stop when called upon to do so on two occasions. He remains unlicensed to drive. Although in his closing submissions provided after the hearing the Applicant said that he will get a driver’s licence, it is clear that he had no intention of obtaining a licence until now, when confronted with potential removal from Australia.  He chose to ignore the law and, knowing that it was illegal to drive without a licence, repeatedly chose to do so. The above extract from his

    
    

    cross-examination would indicate that it had never even occurred to him to get a licence. That attitude, and the clear risk that he poses to other road users, is of concern to the Tribunal.

    The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (13.1.2(1)(b))

1. The Applicant’s criminal history clearly indicates that he is a very high risk of re-offending. The pre-sentencing report dated 11 March 1997 assessed the Applicant to be at a moderate risk of re-offending with a high level of needs (R4, G15/118). As history showed, that assessment of the Applicant being a moderate risk of re-offending has proved to be optimistic.

2. In effect, all that we have is the Applicant’s repeated statements of remorse for his offending. Even his statements of remorse appear to be driven more by the realisation that his conduct has, as Deputy President Hotop put it in the passage cited above, ‘place(d) his right to remain in Australia in jeopardy’ rather than through any appreciation of the effect of his conduct on other members of the Australian community.

3. Also of particular concern to the Tribunal is that it appears that in some fairly basic respects, the Applicant still fails to understand that what he has done in the past is wrong. The nature and sheer volume of serious repeat offending in circumstances where he took deliberate decisions to re-offend knowing what the was doing was illegal, indicates that he has a total disregard for the law and therefore, in the Tribunal’s view, is highly likely to re-offend.

4. It is also of concern to the Tribunal that the cross-examination of the Applicant in relation to the most serious of his offences, the sexual penetration without consent, indicated that he still did not have a full appreciation of the nature and gravity of the offence that he committed. The passages from his cross-examination set out in [38(d)] above leave the Tribunal with the uncomfortable impression that his view was that what he had done wrong was have sex with someone who was under the age of consent, not that he had sexually penetrated a girl without her consent, even in circumstances where he admitted that she tried to push him away.

5. This attitude to the very serious crime that he committed does not seem to have changed over time. In a letter dated 10 February 2005 sent to the Department at the time of his first visa cancellation, the Applicant said (R4, G25/187):

   The offence for which I was sentenced: I acknowledge the errors of my judgment at the time and the fact that I was unaware of the victims (sic) age (I thought she was older) I now also know to be no excuse.      

6. There is nothing in the Applicant’s behaviour over the whole of the period that he has been in Australia, perhaps with the exception of his time in prison and in detention, which would indicate that he has gained any appreciation of his need to comply with the law. His consistent, in fact constant, offending demonstrates a disregard for the law.

7. The Respondent makes the following submissions in his SFIC (R1):

   36.Indeed, whilst the applicant now claims that he is remorseful of his past behaviour such claim should be given minimal weight in circumstances where the applicant continues to dispute the circumstances of his offences (G22/173; G19/141; G14/113). Nor is there any evidence of rehabilitation undertaken by the applicant in order to address his offending. The applicant asserts that he is ‘committed to address his behaviour including drug addiction and any negative behaviour that led to the applicant committing a sexual offences” however no independent evidence of any such rehabilitation has been provided and, as set out above, the applicant was last convicted of a drug related offence in April 2017.

   37.Finally, given that the applicant has been in custody or immigration detention since April 2017 (G11/53), the respondent contends that sufficient time has not elapsed where the applicant has not been in an unsupervised environment within the community and the likelihood of his re-offending remains a real possibility.

   38.Given the applicant’s criminal history, and in the absence of any probative evidence of rehabilitation, the Tribunal can have little confidence that the applicant will refrain from committing further offences. The respondent contends that the protection of the Australian community strongly weighs against revoking the original decision.

8. The Tribunal agrees with the Respondent’s assessment. There is only passing reference in a number of the documents produced under summons which refer to rehabilitation or courses undertaken by the Applicant while in prison or in detention. The vast majority of these relate to the Applicant’s term of imprisonment following his conviction of the sex related offence (e.g. R4, G33 and G34, reports dated September and October 2003 respectively, referring to the Applicant undertaking a Sex Offender Treatment Program). Given the fact that the Applicant went on to commit 42 offences after this time and continued to have drug and alcohol issues indicate that the programs that he undertook at this time were largely ineffective in addressing the Applicant’s offending behaviour.

9. At the hearing the Tribunal asked the Applicant about the rehabilitation programs that he had undertaken. He advised that he had been given a drug and alcohol course while in detention. He also advised that while he was in the community prior to his detention he was seeing a counsellor from International Health and Medical Service in [Suburb 3] for his drug and alcohol issues (Transcript at 21-22).

10. At the time of his being taken into custody, the Applicant was living with his partner (Transcript at 72). She gave evidence that she suffers from severe psychiatric conditions including schizophrenia and is on heavy medication (Transcript at 73). She is unable to care for her children including her four year old daughter who is cared for by her parents. The Applicant’s own evidence was that his partner’s extended family and friends frequently were at his house drinking, asking him for money for alcohol and that disputes often ensued.  The police records of the frequent call-outs to incidents at the Applicant’s address confirm that to be the case. The environment into which the Applicant would return if he were to be released back into the community is of concern. While it is undoubtedly a sad situation, the evidence indicates a dysfunctional, violent environment where drug and alcohol use are prevalent. It is highly unlikely that the Applicant would get any support in avoiding a return to offending if he were to return to that environment.

11. There is, in the Tribunal’s assessment, a high likelihood that the Applicant will engage in further criminal or other serious conduct if the cancellation of his visa were to be revoked.

    Second primary consideration: The best interests of minor children in Australia (13(2)(b))

12. Paragraph 13.2 of Direction 79 provides:

    (1)Decision-makers must make a determination about whether revocation is in the best interests of the child.

    (2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

    (3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

13. Paragraph 13.2(4) of Direction 79 outlines the factors that a decision-maker must consider when determining the best interests of a child:

    a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    e) Whether there are other persons who already fulfil a parental role in relation to the child;

    f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

    h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

14. The Applicant has two children under 18 years of age. They are the daughter to his current partner, born in March 2015, and a daughter born in June 2001 (R4, G19/138). The older of the daughters lives with her mother. The Applicant’s evidence at the hearing was that the mother of the older daughter provides good care and has help from her parents looking after that child (Transcript at 26). The Applicant’s evidence on the amount of contact that he had with his older daughter was not clear. He indicated that he did not go to the older daughter’s mother’s house, as she had a partner and he did not want to bother them, but that he spoke to his daughter on the phone (Transcript at 27). There was no evidence that the Applicant provided any financial support to his older daughter. The Tribunal notes that the older daughter will turn 18 years of age in June this year.

15. The four year old daughter is in the care of the Applicant’s partner’s parents. The Applicant’s partner’s evidence at the hearing was that the child had gone to live with her parents about three years ago because she had had a nervous breakdown (Transcript at 72). That would mean that the child was already being looked after by her maternal grandparents at the time that the Applicant went into custody in 2017. Her evidence was that her father is in full time employment, that they took the child to pre-school every day and that they would continue to care for the child. She thought that her mother was about 53 years old and her father about 55 or 56 years old. The child was the only person living with her parents (Transcript at 73-74). 

16. The Applicant identified a minor nephew born in 2002 (R4, G19/138). It emerged at the hearing that this child was in fact not a nephew but rather the child of a close friend with whom the Applicant had come to Australia and who had passed away (Transcript at 24). In relation to this child the Respondent submits (R1, paragraph 41 of SIFC) that:

    a.The relationship is non-parental.

    b.There is limited evidence in relation to the relationship between the applicant and his nephew.

    c.His mother fulfils a parental role.

    d.There is no independent evidence of the effect that any separation would have on the child and there appears to be no impediment to the applicant being able to maintain contact with her via telephone or other digital means.

17. In the Tribunal’s view the Respondent’s above assessment is correct.

18. On the evidence before the Tribunal it appears that the child who is most likely to be affected by whether the Applicant remains in Australia or not, is the four year old daughter living with her maternal grandparents. The day-to-day care of that child has been undertaken by her grandparents and, on the basis of the Applicant’s partner’s evidence, there is no reason to believe that that will not continue to be the case (Transcript at

    
    

    73-74). It is hard to gauge the nature of the relationship that the Applicant has with his daughter given that she had been placed into the care of her grandparents when she was only about one year old and before the Applicant had gone into custody.

19. In his written closing submissions filed 24 March 2019, the Applicant advised that, if he were allowed to remain in Australia, one of the first things that he would do is to ‘get my daughter back home with her mum and her dad’. The Tribunal accepts that the Applicant has love and affection towards his daughter, however, it is questionable how much of a positive parental role the Applicant and the child’s mother would be likely to play if the Applicant were to remain in Australia given the Applicant’s partner’s mental health issues and the environment that the Applicant and the child’s mother were living in at the time that the child was placed into her grandparents’ care. The Tribunal is also mindful of the limited role that the Applicant has had in his daughter’s upbringing in light of the fact that she has been in her grandparents’ care for three of the four years of her life.

20. The Respondent contends (paragraph 42 of the Respondent’s SIFC) that this consideration does not weigh in favour of the Applicant and is neutral. The Tribunal does not agree. In the Tribunal’s view this consideration does weigh in favour of the revocation of the cancellation of the visa, however, for the reasons set out above, the weight to be given to this consideration, in comparison with the other considerations, is not significant.

    Third primary consideration: Expectations of the Australian Community (13(2)(c))

21. Paragraph 13.3 of Direction 79 provides:

    (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

22. The Tribunal also refers to the principles and expectations set out in Paragraph 6.3 of Direction 79 (see [24] above), in particular those set out in subparagraphs (2), (3), (4) and (5).

23. The proper construction of the above provisions was considered by the Federal Court in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY). That case was looking at the construction of the predecessor of Direction 79, namely Direction 65,[2] which was relevantly in the same terms. In that case Mortimer J made the following comments:

    [76]In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

    [77]I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 at [64]–[66]).

    [2] Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Immigration and Border Protection, 22 December 2014)

24. In YNQY the Court was, in part, considering whether the Tribunal erred in failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.

25. The passage referred to by Mortimer J above in Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296; [2016] FCA 348 states as follows:

    [64]In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven ‘Principles’. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, ‘simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa’. The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect.

    [65]... In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.

26. Deputy President Constance in Zyaran and Minister for Home Affairs [2018] AATA 3785 at [71] and [72] and in Nguyen and Minister for Home Affairs [2018] AATA 3726 at [84] and [85] applied the reasoning of the Federal Court in YNQY as did Member Burford in

    
    Le and Minister for Home Affairs 

    [2018] AATA 4126 (Le). Deputy President Rayment, QC in the case of Kumeroa and Minister for Home Affairs [2018] AATA 3744 at [17] also applied YNQY.

27. In Le Member Burford, having cited [76] and [77] of Mortimer J’s decision in YNQY (see [75] above), said:

    139.The Tribunal notes that both Direction no. 65 and the relevant authorities make it clear that the Tribunal must take into account the primary and other considerations relevant to the individual case. Direction no. 65 specifically notes that both primary and other considerations may weigh in favour of either to revoke or not to revoke a mandatory cancellation of a visa (Direction no. 65, Cl 8(3)). While the Direction states a primary consideration should generally be given more weight than the other considerations, the authorities make it clear that this will depend on the individual circumstances and will still require the Tribunal to take into account both the primary and other considerations and to give each appropriate weight in reaching a decision.

    140.The Federal Court’s decisions in YNQY and Uelese do not raise the expectations of the Australian community to the status of a determinative consideration. The approach outlined by the Federal Court highlights that it is open to the Minister to make a statement of the Government’s views as to the expectations of the Australian community and that Direction no. 65 makes such a statement. Applying YNQY and Uelese, the Minister makes this statement both in the principle expressed in 6.3(2) and in 13.3(1). Applying Uelese, 13.3(1) directs that the Tribunal should have due regard to the Government’s views in this respect.

    141.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view as to the expectations of the Australian community as expressed in 6.3(2) and in 13.3(1) of Direction no. 65. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation. However, it remains for the Tribunal to determine, in all the circumstances, what constitutes appropriate weight. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.

1. Additionally, in Afu and Minister for Home Affairs [2018] FCA 1311 at [85] Bromwich J stated the following:

   The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms, which is precisely what it did.

2. The Tribunal has considered the effect of Mortimer J’s judgment in a number of decisions. In some of those cases the Tribunal has found that the decision in YNQY, which the Tribunal is bound to follow, in effect requires the Tribunal in all cases to take this primary consideration of the expectation of the Australian community as being that the visa would be cancelled or not granted.

3. The more common approach, and one with which this Tribunal agrees, is that her Honour’s comments, in particular the operation of the ‘kind of deeming provision’ (YNQY at [76] – see [75] above) by operation of which the expectation of the community is to be taken as being against revocation of the cancellation, is limited to cases referred to in the third sentence of paragraph 13.3(1) of Direction 79, namely, cases where ‘the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa’. That was the approach taken by Member Eteuati in Doan and Minister for Home Affairs [2019] AATA 169 at [185]-[208]. Member Eteuati relevantly found:

   [205]The Tribunal considers that Mortimer J’s comments in paragraph 75 to 77 of YNQY decision are directed to the third sentence of paragraph 13.3 of the Direction either because Mortimer J considered that the seriousness and nature of the applicant’s conduct in that case were such that the Australian community would expect that the person should not hold a visa, or more likely, that her Honour reached the conclusion that the Tribunal Member in that case had so found.

4. In reaching that conclusion the learned member reasoned:

   [187]In YNQY Mortimer J was considering, relevantly, a ground of review that the Tribunal had failed to deal with the primary consideration of the expectations of the Australian community according to law.

   [188]At this point in her decision her Honour had already found that the Tribunal had committed a jurisdictional error arising from the way it had dealt with the primary consideration of the best interests of any minor children, and a jurisdictional error arising from the way the Tribunal had dealt with the consideration of impediments to the applicant re-establishing himself in his home country. In doing so, her Honour had discussed the circumstances in which it may be appropriate for a court to refuse to grant relief where it is found that a decision is affected by jurisdictional error. Her Honour found that a court may refuse to grant relief where, despite the error, the applicant was not deprived of the possibility of a successful outcome.

   [189]In relation to the ground of review regarding the expectations of the Australian community, Mortimer J did not make a finding as to whether the Tribunal had erred legally in the way that the Tribunal had dealt with that consideration. Rather, her Honour expressed that even if such an error was found, the applicant was not deprived of the possibility of a successful outcome. For the reasons given below, the Tribunal finds that her Honour reached that conclusion because it had been found that the nature of the character concerns or offences regarding the applicant in YNQY were such that the Australian community would expect that the person should not hold a visa (see third sentence of paragraph 13.3(1)). In these circumstances, her Honour stated that it was inevitable that this consideration would weigh against revocation of cancellation.

   …

   [192]The Tribunal considers that Mortimer J was expressing that the consideration of the expectations of the Australian community is adverse to any applicant, and that is inevitable that this consideration would weigh against revocation, where the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.

5. In the case of Margach and Minister for Home Affairs [2019] AATA 353 (published

   
   

   5 March 2019) Deputy President Forgie, having quoted [76] and [77] of Mortimer J’s judgment in YNQY, stated:

   [86]I respectfully do not agree with the statement, if it be intended to be of general application, that it is inevitable that paragraph 13.3(1) would weigh against revocation. Paragraph 13.3(1), with which I am concerned and which was the subject of YNQY, is quite specific in its statement that the Australian community expects noncitizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that I have set out at [50] above. Granted that the principles are of critical importance, the determination of what is unacceptable must have regard to the evidence.

6. In the present case the discussion as to whether the effect of Mortimer J’s judgment in YNQY is to require the decision-maker in all cases to take the community’s expectation to be against revocation of cancellation or whether that ‘deemed’ expectation under Direction 79 only arises in the circumstances described in the third sentence of paragraph 13.3(1), is academic because, in the Tribunal’s view, the character concerns or offences in the present case are such that the Australian community would expect that the Applicant not hold a visa.

7. The Tribunal finds that the expectations of the Australian community are that the Applicant should not hold a visa.

   OTHER CONSIDERATIONS

8. Paragraph 14 of Direction 79 provides:

   (1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

   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.

   Non-refoulement obligations (14(1)(a))

9. As noted at the beginning of this decision, on 22 August 1995, the Applicant was granted a Protection (subclass 866) visa by the Minister for Immigration and Ethnic Affairs under

   
   

   s 417 of the Act (R5, SG9/201). Prior to the grant of the protection visa by the Minister, the Department had rejected the Applicant’s claim for a protection visa because it found that he was not a refugee for the purposes of the Act (R5, SG4). That decision to refuse the visa on that ground was affirmed by the Refugee Review Tribunal (R5, SG6).

10. As also noted above, on 5 March 1998 the Applicant was granted the Class BB Subclass 155 Five Year Resident Return visa (G40/228).

11. Direction 79 relevantly states, in paragraph 14.1, that:

    (1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

    (2)The existence of a non-refoulement obligation does not preclude nonrevocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

    (3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

    (4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

    (5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).

    (6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

12. The Respondent notes that, notwithstanding that the Department and the Refugee Review Tribunal found that the Applicant was not owed non-refoulement obligations, he was granted a protection visa by the Minister on humanitarian grounds under s 417 of the Act. The Respondent says that s 48A of the Act prevents the Applicant from making any further application for a protection visa while he is in the migration zone (Respondent’s SFIC R1, para 54). The basis for that statement is not set out in the Respondent’s Statement of Facts, Issues and Contentions. While it is not material to this Tribunal’s decision, the Tribunal cannot see why s 48A of the Act would operate to bar the Applicant from making an application for a protection visa. The Applicant has not had a protection visa cancelled so s 48A(1B) of the Act would not apply to bar an application and, although the Applicant’s application for a protection visa was refused by the Department, that decision to refuse the protection visa was substituted with a decision to grant the visa by the Minister under s 417 of the Act. Accordingly, the Applicant has not had an application for a protection visa refused for s 48A(1) of the Act to operate to bar an application for a protection visa.

13. The Respondent concedes that under the authority of DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576, if the mandatory cancellation is not revoked, the Applicant would become liable to removal from Australia under s 198 of the Act as soon as reasonably practicable. Section 197C of the Act provides that for the purposes of s 198 of the Act, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen, and the Tribunal must therefore consider the legal consequences of its decision to affirm the delegate’s decision.

14. The Respondent further concedes that return to Mozambique is therefore one possibility facing the Applicant if the mandatory cancellation is not revoked. However, the Respondent asserts that there are other possibilities which he lists as (Respondent’s SFIC R1, para 56):

    (i)the applicant may enjoy the benefit of an exercise of discretion by the Minister under ss 48B or 195A of the Act; or

    (ii)he may be the subject of a residence determination under Subdiv B of Div 7 of Part 2 of the Act; or

    (iii)he may be resettled in a third country.

15. The Respondent submits that ‘history teaches that the risk of persecution fluctuates over time, and it may be that any return to Mozambique in the future is free from risk’ but that it is possible that the Applicant would be subject to immigration detention until one of the aforementioned possibilities eventuates. The Tribunal must take into account these possibilities as the range of potential legal consequences of its decision.

16. Deputy President Forgie in PRHR and Minister for Immigration and Border Protection [2017] AATA 2782 at paragraphs [142]-[144] analysed how Direction 65 (which was relevantly in the same terms as Direction 79) should be read by the Tribunal so as to be consistent with s 197C of the Act. She said as follows:

    142.Since the enactment of s 197C, it is clear that the whole of the final sentences in each of paragraphs 12.1(2) and (6) are an incorrect statement of the law. To say, as paragraph 12.1(2) currently does, that Australia “will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists”, is not a correct statement of the law. If the circumstances set out in s 198 apply, s 197C imposes an obligation upon an officer to remove a non-citizen regardless of whether Australia has non-refoulement obligations in respect of him or her. For the reasons I give below, I think that omission of the two sentences is the preferable course to substituting words for those that appear because I have doubts whether Direction No. 65 can be read as if other words were inserted. In case my doubts are unfounded, I will now set out my reasons for concluding that reading cl 12.1(2) as if the word “might” or “may” appeared rather than the word “will” would not plainly solve the inaccuracy of the sentence.

    143.To say that Australia “might not remove a non-citizen” in the circumstances described is, I suggest, capable of misleading the reader. The word “might” is the past tense of the word “may”. Whichever is chosen, both are capable of being understood in the sense of expressing permission. If that is the meaning in which they are understood, the amendment suggested to paragraph 12.1(2) would continue to be an incorrect statement of the law. The final sentence would indicate that Australia is not permitted – “may not” or “might not” – remove a non-citizen as a consequence of its non-refoulement obligations. If the word is used to express a possibility, the final sentence suggests that there is a possibility that Australia will not remove a non-citizen as a consequence of its non-refoulement obligations. To say that there is a possibility is true if the Minister is considering whether to exercise power under s 195A and if there were no country that would receive the non-citizen if removed from Australia. The qualifications are not apparent if that is how the word “may” is to be understood. Therefore, I suggest that it should be omitted.

    144.The last sentence of paragraph 12.1(6) is incorrect when it begins with the statement that “Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations”. In view of s 197C, it is also incorrect to say that “... the operations of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.” Therefore, I agree with the parties that the whole of the final sentence of paragraph 12.1(6) should not be included.

    (Footnotes omitted.)

17. The Tribunal agrees with the opinion of Deputy President Forgie as to the proper construction of Direction 65 and applies that construction to the identical provisions of Direction 79.

18. Unfortunately, in the present case we do not have the benefit of any submissions from the Applicant as to what sort of risk of harm he might face if he were returned to Mozambique. In the context of impediments to his return to Mozambique, the Applicant in his written closing submissions, says that he left Mozambique for South Africa when he was 13 or 14 and that, based on the country information provided by the Respondent (R6), ‘the country is still at war…is still trying to rebuild itself but there’s terrorism, war amongst the tribes, corruption in government and furthermore violence is not only in Cabo Delgado but in (a) few province(s).’

19. The country information provided by the Respondent (R6), which was the Department of Home Affairs Standard Q&A Report Mozambique: Cl190124122016809 – Security situation, does refer to areas of violence and that the local terrorism threat remaining as it had been over the last several years, and notes that ‘there had been no known terrorist attacks against U.S. or Western interests inside Mozambique’. The report also contains a number of positives such as the fact that since the time that the Applicant would have been in Mozambique, the civil war has ceased and that the two main protagonists in the civil war are now in government together. The comment is made in the report that ‘[t]he World Bank notes that outbursts of armed conflict have sometimes occurred, however more recently moves have been made towards more peaceful co-existence’. There is reference to insurgency activity, however, that appeared to be limited to the north of the country.

20. There is nothing before the Tribunal, however, which would establish that Australia owes non-refoulement obligations to the Applicant. Even if such obligations did exist, the first sentence of paragraph 14.1(6) of Direction 79 requires non-refoulement obligations to be weighed against the seriousness of the Applicant’s offending. The Applicant’s offending included sexual penetration of a 14 year old child without consent, applying relevant provisions of Direction 79, is very serious. The frequency of the Applicant’s offending and the violent nature of a number of the other offences that he has committed are also relevant to this consideration. Taking these factors into account, on balance, the Tribunal finds that, even if the Applicant were owed non-refoulement obligations, these are outweighed by the seriousness of the Applicant’s criminal behaviour.

    Strength, nature and duration of ties (14(1)(b))

21. Paragraph 14.2 of Direction 79 is as follows:

    (1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

    a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    i.       less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii.      More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    b)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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

1. The Respondent acknowledges that the Applicant has resided in Australia for some

   
   

   24 years. His partner and four children reside in Australia and that the Applicant’s employment history demonstrates some contribution to the Australian community (Respondent’s SIFC R1, paras 47-48).

2. The Respondent submits, however, that this limited contribution should be considered against the financial cost to the Australian community in responding to the Applicant’s offending through policing, the courts and corrective services.

3. The Respondent concedes that this consideration may weigh in favour of the revocation of the cancellation of the visa, but, according to the Respondent, that it is outweighed by the primary considerations weighing heavily against the revocation of the cancellation. The Tribunal agrees with the Respondent’s assessment that this consideration weighs in favour of the revocation of the cancellation. The Tribunal, however, notes that the Applicant’s ties to the Australian community have not always resulted positively for either the community or the Applicant.

4. The weight that can be given to this consideration is also diminished by the fact that the Applicant started offending in December 1995 very shortly after he arrived as a

   
   

   19 year old in March 1995 (Direction 79, paragraph 14.2(1)(a)(i)).

   Impact on Australian business (14(1)(c)) and Impact on victims (14(1)(d))

5. There is no evidence before the Tribunal which would indicate that either of these other considerations is applicable in this case.

   Extent of impediments if removed (14(1)(e))

6. Paragraph 14.5(1) of Direction 79 provides:

   (1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   a)The non-citizen’s age and health;

   b)Whether there are substantial language or cultural barriers; and

   c)Any social, medical and/or economic support available to them in that country.

7. The Applicant’s SIFC did not address this consideration. In his written closing submissions the Applicant refers to the difficulties that he will have in re-establishing himself in Mozambique as being:

   (a)his difficulty in reading and writing;

   (b)that he knows no-one in Mozambique having left as a 13 or 14 year old;

   (c)the country still being at war;

   (d)the country still rebuilding and being subject to terrorism and war amongst the tribes;

   (e)corruption in the government;  and

   (f)violence in some of the provinces.

8. The last four factors that the Applicant identifies are taken from the Applicant’s reading of the country information provided by the Respondent (R6).

9. The Respondent in his written closing submissions submits:

   30.The applicant claimed that he will have difficulty re-establishing himself in Mozambique relating to his inability to read and write. The evidence before the Tribunal however indicates that the applicant enrolled in a reading & writing, oral communication and mathematics and art course (Ex R5, page 219).

   31.To the extent that the Tribunal considers it appropriate to consider the general security situation in Mozambique under this consideration, it does not weigh in favour of revocation. The country information suggests that the civil war ceased in 1992 and that a functioning political system has existed since that time (Ex R6). Furthermore, the country information makes no reference to violence outside of the Cabo Delgado province (Ex R6).

10. Unfortunately, as is often the case, the evidence available to the Tribunal relevant to this consideration is scant. While the country information (R6) does not indicate that the situation is as bad as stated by the Applicant, it is undoubtedly the case that the Applicant will face not insubstantial impediments in re-establishing himself in Mozambique. In response to questions put to him by the Tribunal at the hearing, the Applicant advised that he had no family left in Mozambique and that he did not speak Portuguese ‘much’ any more (Transcript at 21). From the answers provided by the Applicant the Tribunal understands that he can speak Portuguese, however, how well is not clear.

11. In relation to the Applicant’s ability to read and write, although, as the Respondent pointed out in his submissions, the Applicant has undertaken literacy courses while in prison, those were back in 2003 (R5, SG11/219). Based on the evidence that the Applicant gave at the hearing the Tribunal is satisfied that the Applicant’s ability to read and write is extremely limited. This would be an impediment in his establishing himself in Mozambique.

12. On the little evidence available to it, the Tribunal accepts that there would be potentially significant impediments in the Applicant establishing himself and that this consideration weighs in favour of revocation of the cancellation of the visa.

    THE WEIGHING EXERCISE

13. Guidance is given by Direction 79 of how the decision maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant. They provide:

    (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

    (4) Primary considerations should generally be given greater weight than the other considerations.

    (5) One or more primary considerations may outweigh other primary considerations.

14. A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. In discussing how the exercise was to be undertaken under Direction 65, which, for relevant purposes, is in the same terms as Direction 79, Colvin J in Suleiman v Ministerfor Immigration and Border Protection [2018] FCA 594 said:

    23. The use by the Tribunal of the term 'secondary' indicates that the 'other considerations' are always of lesser importance. However, Direction 65 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.

    …

    40.There is no hierarchy of considerations expressed within the state of satisfaction required by s 501CA(4). Therefore, it would be contrary to s 501CA(4) to approach the matter on the basis that certain considerations were inherently less important in forming the state of satisfaction required by the Act.

    …

    44.Accordingly, the Tribunal correctly approached the matter on the basis that the decision in BCR16 meant that Direction 65 could not require the Tribunal to, in effect, ignore the matters raised by the applicant as to the risk of harm. The same would apply if Direction 65 required the Tribunal to treat any matter as a secondary consideration. Direction 65 could identify matters that were required to be considered in all case (namely, the primary considerations). However, it could not direct that a particular matter be given less weight in all cases. So, if I am wrong in the view that I have taken as to the meaning of Direction 65 and it required the 'other considerations' to be given less weight then that too was an aspect of the direction that could not validly have confined the Tribunal.

15. The decision in Suleiman was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217. At [30] to [35] the Full Court observed:

    [30]In our view the Tribunal’s reasons, read as a whole, do not reflect an understanding that “other” considerations must always be given lesser weight than primary considerations, or that this view prevailed when considering the international non-refoulement obligations owed to the respondent. This may be seen from the following matters.

    [31]First, at [96] the Tribunal considers its findings (at [95]) that the respondent assisted US military forces in Iraq in some capacity and faces some risk of harm if returned to Iran because of this association weighs to some degree in favour of revocation. It poses the question as:

    [W]hether this finding in relation to what is an “other” or “secondary” consideration outweighs the Tribunal’s findings in relation to the primary considerations detailed above.

    [32] The reference to “secondary” in this context is ambiguous, because it may be synonymous with “other” or refer to an inferior consideration, but at [97], the Tribunal proceeds to observe that it “needs to weigh” these safety concerns with the “very strong” earlier identified (primary) concerns in relation to the seriousness of the respondent’s crimes, the risk of further offending and what this would mean for the Australian community. At [98] it goes on to note that the primary considerations in Direction 65 are normally given greater weight than “other” considerations and that the Tribunal finds “that the primary considerations here clearly outweigh this secondary consideration” (emphasis added). The reference to “normally” indicates that the standard that the Tribunal is applying is not one that inevitably gives lesser weight to the “other” or “secondary” consideration, but that normally one does so. That is not an inaccurate characterisation of Direction 65, which in s 8(4) provides that “primary considerations should generally be given more weight than other considerations”. The word “normally” indicates that the other consideration may sometimes not warrant lesser weight. Further, the finding that the primary considerations here outweigh the secondary consideration indicates a balancing exercise on the part of the Tribunal that would be redundant if it had considered that a primary consideration would always prevail over a secondary consideration.

    [33]This understanding of the Tribunal’s reasons is in our view supported by the language used at [104], where the Tribunal concludes in its consideration of the “strength, nature and duration of ties” that it is not convinced that “on balance” they outweigh the primary considerations identified earlier.

    [34]Further, in its conclusions at [119] – [124] (set out in full above) the Tribunal engages in a process that proceeds to weigh the “other” considerations, which it finds are in favour of revocation, against the countervailing considerations and concludes that on balance they do not “outweigh the other primary considerations” which are “generally afforded greater weight” (emphasis added). This language indicates that the Tribunal did not take the view that “other” considerations were always subservient to primary considerations.

    [35]Taken together, we consider that the ambiguity apparent from the twice used word “secondary” does not reflect the error that the learned primary judge considered had arisen. At this point we should note that we have not here been asked to consider in this context the correctness of Suleiman. Certainly if the Tribunal did regard a secondary consideration as incapable of outweighing a primary consideration then it would not, in that respect, be correct and her Honour’s agreement with that decision would equally have been correct. However, the contextual matters to which we have referred indicate that the Tribunal did not do so in the present case, as a result of which the appeal based on grounds 1 and 2 succeeds.

16. Senior Member Evans in CZCV and Minister for Home Affairs [2019] AATA 91 at [164] summarised the legal position following the various cases referred to above as follows:

    164. Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so…

17. The Tribunal agrees with the approach outlined by Senior Member Evans.

18. The Respondent submits (Respondent’s SIFC para. 58) that:

    For the reasons outlined above, the Principles and the two primary considerations of the protection of the Australian community and expectations of the Australian community weigh heavily against revocation of the mandatory cancellation of the applicant’s visa. Those Principles and considerations outweigh the considerations in favour of revocation. The respondent respectfully contends that on the evidence before it, the Tribunal cannot be satisfied that there is another reason why the mandatory cancellation should be revoked in accordance with s.501CA(4)(b)(ii). It follows that the decision under review should be affirmed, as the correct and preferable decision.

19. It is not as easy to extract a concise statement of the Applicant’s contention as to how the Tribunal should balance the various considerations. In his closing submissions the Applicant refers to the sad and brutal childhood that he had in Mozambique (the Tribunal’s description), how he was orphaned, how he was abducted and pressured to become a child soldier (which he did not become), how his ear was partially removed when he tried to escape and after that his period in South Africa living on the streets and relying on stealing to survive. He points to his youth when he arrived in Australia and how this caused him to make bad decisions. The Tribunal does not accept this as he was 19 years old when he arrived, 20 years old when he committed his first serious offence within nine months of arrival and he was 25 years old when he sexually penetrated a 14 year old girl without her consent. Any claimed immaturity on his part is clearly even less of an excuse for the 40 odd further offences he committed following his imprisonment on the sexual penetration conviction.

20. The Applicant asserts that he is now more mature, has learnt from his mistakes and is very remorseful for the offences that he has committed. He says in his closing submissions that :

    … I’m more mature at the age of 42 and having served that time in detention not knowing if I’m going to get out or sent back to Africa, is one of the main reasons that its different because I don’t want to come back to face indefinite immigration detention or get sent back to Africa.

21. Again, little comfort can be taken from these statements by the Applicant given the unequivocal warning that Deputy President Hotop gave the Applicant in 2005 (see [48] above) as to the consequences if the Applicant were to re-offend. Notwithstanding that warning the Applicant still chose to commit over 40 further offences.

    CONCLUSION

22. The Applicant does not pass the character test. That is not disputed. The sole issue is whether, guided by Direction 79, there is another reason why the mandatory cancellation of the visa under s 501(3A) should be revoked

23. The first primary consideration under Direction 79, the protection of the Australian community from criminal or other serious conduct, for the reasons set out above, weighs heavily against the cancellation of the visa being revoked. The seriousness of the Applicant’s offending and the sheer number and nature of the Applicant’s repeat offending, including a number of offences involving violence, indicate to the Tribunal that there is a very high likelihood of the Applicant committing further serious offences if he were allowed to stay in Australia.

24. The other primary consideration that weighs against the revocation of the cancellation of the visa is the expectations of the Australian community. Given the nature of the very serious crime with which the Applicant was convicted, the sexual penetration of a 14 year old girl without her consent, and the number of offences committed by the Applicant after his release from prison, knowing that any re-offending could cause cancellation of his visa, the Tribunal accepts that the expectation of the Australian community is that the Applicant’s visa remain cancelled. The Tribunal places significant weight on this consideration.

25. The remaining primary consideration, the best interests of minor children in Australia, weighs marginally in favour of the revocation of the cancellation of the visa. The weight to be given to this consideration is, however, not significant for the reasons set out above. In particular the fact that the child to which this consideration is most relevant, the Applicant’s four year old daughter, is in the care of her grandparents who, on the evidence of the Applicant and his partner, are providing good care and an environment for the child’s future which is likely to be better than the Applicant and his partner could offer the child. This is evidenced by the fact that the child was put into her grandparents’ care even before the Applicant was taken into detention.

26. The other applicable considerations identified in Direction 79, namely non-refoulement obligations, strength, nature and duration of ties and the extent of impediments that the Applicant will face if removed, weigh in favour of the revocation of the cancellation of the visa. These considerations, however, are outweighed by the considerations of the protection of the Australian community and the expectations of the Australian community. In these circumstances the Tribunal is of the view that there is no other reason why the cancellation of the visa under s 501(3A) should be revoked.

    DECISION

27. The Tribunal affirms the decision by the delegate of the Respondent, made under

    
    

    s 501CA(4) of the Act to refuse to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa under s 501(3A) of the Act.

I certify that the preceding 127 (one hundred and twenty - seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

..................................[sgd]......................................

Associate

Dated: 28 March 2019

Date of hearing:	18 March 2019
Applicant:	In person
Representative for the Respondent:	Ms E Tattersall
Solicitors for the Respondent:	Sparke Helmore