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

PTHD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 543 (16 March 2020)
Division:GENERAL DIVISION
File Number:2019/8656
Re:PTHD
APPLICANT

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

DECISION
Tribunal:Mr S Evans, Member
Date:16 March 2020

Place: Sydney
The decision of 16 December 2019, not to revoke the mandatory cancellation of the Applicant’s Subclass 444 Special Category (Temporary) visa pursuant to section 501(3A) of the Migration Act 1958 (Cth), is affirmed.
............[sgd]............................................................
Mr S Evans, Member
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of a Subclass 444 Special Category (Temporary) visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record under s 501(7) – affray – whether there is another reason to revoke the mandatory cancellation of the visa – Ministerial Direction No. 79 – primary considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties – impediments if removed – where Applicant is considered to be at medium risk of re-offending – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (instrument made on 20 December 2018, commenced 28 February 2019)
REASONS FOR DECISION
Mr S Evans, Member
16 March 2020

PTHD (“the Applicant”) is a citizen of New Zealand. He first arrived in Australia on 31 January 2005 at the age of 7 as the holder of a Class TY Subclass 444 (Special Category) (Temporary) visa (“the visa”). On 9 May 2019, the Applicant’s visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) by a delegate of the Minister (“the Minister” or “the Respondent”) as he had been sentenced to a term of imprisonment of 15 months on 7 February 2019, thus he failed to pass the character test.
The Applicant made representations seeking revocation of the cancellation decision on 25 May 2019. A delegate of the Minister decided not to revoke the mandatory cancellation decision on 16 December 2019, and the Applicant was notified on 18 December 2019.
The Applicant has applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the decision not to revoke the cancellation of his visa.
The matter was heard on 3 March 2020 at the Administrative Appeals Tribunal in Sydney. The Applicant appeared by video conference and was represented by a lawyer. The Tribunal received evidence on behalf of the Applicant from two witnesses; and has before it written evidence and submissions. The totality of the evidence has been carefully considered.
THE LAW
Section 501(3A)(a)(i) of the Act states that the Minister must cancel a visa that has been granted to a person if they are satisfied that the person does not pass the character test due to them having a substantial criminal record in accordance with subsections 501(7)(a),(b) or (c); and that they are serving a full-time sentence of imprisonment for an offence.
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
(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
When considering whether or not to revoke a mandatory cancellation decision under section 501CA(4), paragraph 7 of Ministerial Direction No. 79 (“the Direction”) sets out how the discretion is to be exercised. It states:
Informed by the principles in paragraph 6.3…, a decision-maker:
…must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Part C of the Direction sets out the primary and other considerations that must be taken into account, where relevant, when deciding whether to revoke a mandatory cancellation. The primary considerations should generally be given greater weight than the other considerations. The primary considerations are as follows:
(a)protection of the Australian community from criminal and other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The other considerations which must be taken into account where relevant are outlined at paragraph 14 of the Direction. The considerations include, but are not limited to:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on victims;
(d)impact on Australian business interests;
(e)extent of impediments if removed.
ISSUES BEFORE THE TRIBUNAL
There is no question that the Applicant made the representations required by section 501CA(4)(a). Consequently, it must be determined whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised.
Therefore, the two issues presently before the Tribunal are:
(a) whether the Applicant passes the character test; and
(b) whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked. I will address each of these grounds in turn.
Does the Applicant pass the character test in section 501(6) of the Act?
The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in section 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 7 February 2019, the Applicant was sentenced in the Parramatta Local Court of New South Wales for affray. He received a term of 15 months imprisonment, with a non-parole period of six months, and for breach of a community corrections order for which he received an additional three months. Consequently, I am satisfied that the Applicant does not pass the character test.
It is conceded by the Applicant that he cannot rely on section 501CA(4)(b)(i) for the revocation of the mandatory cancellation of his visa.
Is there another reason why the decision to cancel the Applicant’s visa should be revoked?
As the Applicant does not pass the character test, the Tribunal must consider whether there is another reason why the decision to cancel the Applicant’s visa should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.
BACKGROUND AND EVIDENCE
The Applicant arrived in Australia aged 7 and has not departed since. His evidence is that he and his nine siblings grew up in a violent home and he was exposed to heavy drinking in the home. He told the Tribunal that he had a “rough” upbringing and was abused “a lot … over small things” and that it had affected him “both physically and mentally”. An intensive correction order assessment report from December 2017 states the Applicant “reported his upbringing as both firm but fair and noted positive supportive relationships with both parents”.
At 12 years of age, he started smoking cannabis and consuming alcohol. He completed his secondary schooling and began working as a labourer. He stated that whilst working he would help his family by paying the rent and “putting food on the table”.
The Applicant began a relationship with Ms IT in 2016; she is an Australian citizen. In June 2017 the couple had a son. The couple’s relationship has been broken off on occasion but they are currently in a relationship.
The Applicant acknowledges his lengthy history of offending and contends that he is at risk of offending when he drinks alcohol. I take into account that he suffers from depression and that he turns to alcohol to help manage it and that his depression was exacerbated by the death of some of his close friends and his grandmother. I take into consideration that some of his friends died through suicide or in violent circumstances which would have been distressing for the Applicant who was still a youth at the time.
The Applicant also suffers from schizophrenia and this was diagnosed in 2017. The evidence before the Tribunal also indicates a diagnosis of “drug induced psychosis” which has abated following abstinence from drugs. The Applicant was prescribed risperidone following the diagnosis which he stopped taking in 2018. He is currently not taking any medication to treat his mental illnesses.
The Applicant gave evidence that he has a good support network now through his family, partner and a social worker. A number of letters of support were provided to the Tribunal; and the Applicant’s partner Ms IT and his social worker also provided oral evidence.
Ms IT said that the Applicant has a close relationship with his son who likes to spend time with the Applicant. She is aware of the Applicant’s offending but does not think that he will reoffend as he is a good man whose personality changes when under the influence of drugs and alcohol. Ms IT said that both she and her son would be personally impacted if the Applicant were to be deported. She said that it would also cause a financial burden on her as she is currently dependent on welfare to raise their son.
Ms IT said that she is not prepared to move to New Zealand in order to be with the Applicant in the event he is deported.
The Applicant’s social worker also provided evidence. She speaks to the Applicant a number of times every week and hopes to employ him in her charity organisation. Having first met the Applicant in 2017, she has known the Applicant during much of his serious offending and indicated that she believes the Applicant has the capacity to change. She said that the Applicant helped her by doing some volunteer work delivering food hampers to people in the community.
The Applicant’s father has also provided a statement in support of his son with a promise of ongoing work.
The Applicant’s offending
The Applicant has an extensive criminal record dating back to 2011 when he was 13 years old. Between the ages of 14 and 18, the Applicant was convicted of a series of assaults and various other offences, including goods in personal custody, steal from the person, robbery in company, break and enter, larceny, drive with middle range PCA, drive unlicensed, fail to appear in accordance with bail acknowledgement and take and drive conveyance without consent of owner.
As a result of these offences, the Applicant was variously placed in supervision, required to comply with control orders, placed on probation, required to perform community service and fined.
After turning 18, the Applicant was convicted of affray, failure to appear in accordance with bail, larceny, assault occasioning actual bodily harm, goods in personal custody, resist or hinder police officer and excluded person remain in vicinity of licensed premises.
On 10 November 2018, The Applicant was intoxicated when he assaulted a stranger after he left a hotel. The sentencing remarks in the Parramatta Local Court by Magistrate Keady on 7 February 2019 detail the circumstances of the assault. Magistrate Keady stated:
… the offender left the Woolpack Hotel in Parramatta, in company with five other men. The victim was sitting outside the Westpac Bank in Church Street, with – apparently with two women. The facts record, the accused ran across the road towards the victim, followed by the other men. Initially, it said the accused put his arms around the victim and then shaped up to him appearing to prepare for a fight.
It is alleged he had his fists clenched, arms bent at the elbows and within arm’s length, engaging in some degree of shadow boxing. Shortly after that, the facts say, that the accused later or just shortly after they left that victim, the accused and the other four men began to chase him. That case continued along George Street, with the victim running to avoid a confrontation. Whilst he was running, the victim was kicked and tripped. Whilst he was falling to the ground, the facts record, that the offender before the Court, [the Applicant], attempted to punch him but missed. The victim fell to the bitumen, was surrounded by the five. It is said that [the Applicant], using his right hand, punched the victim, stomping to his body with his right foot, stomped his head with his right foot, stomped him to the head with his left foot and then kicked into the head with his right foot. The other men engaged and joined in with the assault.
On any measure, given the numbers of people involved and the description of the conduct towards the victim, this is a brutal and cowardly attack on a man in a public place, for which there can be no excuse and which is reflective of behaviour too often seen in public places where people, often randomly, selected for reasons that later can’t be explained, and subjected to an assault or worse. At the time of this incident [the Applicant] was on an order which arose out of another episode of violence where he assaulted another person. I have the facts of that matter. The person was a taxi driver. I won’t go into all the details other than to say that the taxi driver ordered [the Applicant] out of his vehicle. As a consequence, the facts record, as the taxi driver attempted to get out of his taxi, he was punched twice in the face. Those punches landing on the taxi drivers right side of the face causing him pain, and also causing his glasses to be pushed into his right eye, leaving a small laceration to the eyelid, which began to bleed.
It’s common to both offences at the time, [the Applicant] is described as being intoxicated. More broadly, [the Applicant’s] criminal record does not assist him today. Putting aside the offences that are to be found here for property offending, such as goods in custody, I note that he has previous convictions for affray and other offences of violence. Whilst it is so that [the Applicant] is a young man, it is also the case that he has a disturbing inclination to violence, and particularly under the influence of alcohol. It is fortunate indeed, that as a result of being stomped to the head, the victim in the instant matter did not suffer far more serious injuries because we know for a fact that commonly, people subjected to violence of that kind emerge, often with lifelong injuries, and indeed many are killed.
At the time of the assault the Applicant was on a community corrections order as a consequence of a violent assault that occurred on 8 April 2018. On that occasion, the victim was a taxi driver who ordered the Applicant out of his vehicle. As the taxi driver attempted to get out of the taxi, he was punched twice in the face, causing his glasses to be pushed into his right eye, resulting in a laceration to his eyelid.
In addition to the offending, the Applicant conceded during the hearing that he had provided aliases on some occasions when he was apprehended by police.
There are incident reports from gaol that state the Applicant received disciplinary action following an incident where he applied graffiti to the walls of his cell. At the hearing the Applicant accepted responsibility for that incident noting he “suffers from mental issues and the like”. An inmate misconduct report from April last year details another incident where the Applicant pleaded guilty to damaging property when he broke a toilet by standing on it. The Applicant claims this incident was an accident and the Tribunal accepts this explanation.
During the hearing the Applicant was asked by the Respondent if he still has contact with the friends who he used to offend with and he answered “no”. The Respondent put to him that he had been visited twice whilst in prison by one of the individuals who, together with the Applicant, was involved in an affray which took place in May 2016. It was put to him that this indicated he was still in touch with “bad influences” which he had identified as being one driver of his offending.
In response, the Applicant told the Tribunal the visits were whilst he was in gaol and now that he is in detention none of his friends know how to contact him. The Tribunal accepts that the Applicant has excised many of his friends out of his social circle, noting that he did not do so only recently when he moved to immigration detention. The Tribunal does not accept it is part of a considered, ongoing effort to reduce his risk of reoffending should he be released into the community.
PRIMARY CONSIDERATIONS
Primary Consideration A: Protection of the Australian community
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that 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.
The nature and seriousness of the Applicant’s conduct to date
The Applicant has a very significant criminal history for someone of his age. His criminal record is characterised by violence which has caused harm to the victims. If the Applicant were to reoffend, it is clear that there is a significant risk of physical harm to members of the Australian community.
The Tribunal notes that the Applicant has an extensive history of offending which spans many years. His offending is targeted toward members of the public and his record is of offending that has increased in seriousness. Despite repeated warnings in the form of cautions, control orders and community service orders, he has continued to offend regularly and in breach of bond.
I consider that the nature and seriousness of the Applicant’s offending weighs heavily in favour of not revoking the cancellation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Applicant has expressed remorse for his crimes including the most recent affray. It was noted by the Tribunal that he did not seek or have any information about the victim of the affray or knowledge of his injuries or recovery beyond noting that the victim was able to get up off the ground and walk away. He did, however, plead guilty to the offence.
The Applicant’s evidence made clear that he has made the connection between intoxication from drugs and alcohol and his proclivity to offend and this is to his credit. He further identifies other causes for his offending which include his upbringing, friends who are bad influences, the death of friends and loved ones, lack of support and his mental health.

Having identified the causal link between intoxication and his offending, the Applicant has made no serious or ongoing attempt to deal with what he identifies as the key cause of his offending. The evidence before the Tribunal suggests that the Applicant had the opportunity to engage in ongoing and professional support and treatment on a number of occasions but has consistently discontinued this treatment after a short period. He stated that he sought drug and alcohol counselling in 2017 but fell back into binge drinking with his friends and being angry shortly after.
When the Applicant has sought assistance it was at insistence of Ms IT and through the prompting of others including a doctor who saw him after he had been arrested. There is no meaningful evidence before the Tribunal that indicates the Applicant has a proactive commitment to his own rehabilitation in regards to drug and alcohol abuse.
In his statement, the Applicant acknowledges that he only recently started doing courses to manage his substance abuse and anger and to provide him with enhanced life skills. He says that he has signed up to see a psychologist but is yet to do so. The Respondent put to the Applicant that the possibility of having his visa cancelled was more of a motivation to address these issues than the possibility of reoffending. This was not accepted by the Applicant, but the Tribuanl accepts that the timing supports this conclusion.
The Applicant writes that he has made a lot of mistakes and that he has learned from them early on; but given his offending has continued over many years and gradually increased in seriousness over that time, the Tribunal does not accept this assertion.
The Applicant further contends that his history of offending is marked by mental illness, which he is now receiving medical and psychological treatment. However, the Tribunal notes psychological treatment is yet to begin and the Applicant confirmed he is currently not taking any medication.
The Applicant submits that he is remorseful for his crimes and that he is committed to ongoing rehabilitation to ensure he does not reoffend and that he presents no more than a limited risk of committing a violent offence in the future. He gave evidence that he now has the support he needs to ensure that he will not reoffend if released back into the community. He specifically identifies Ms IT, his parents and his social worker as being key to his rehabilitation.
All of these factors were present prior to his recent offending but the Applicant said that he is now more stable and committed to accepting the support. Pressed for more detail, he suggested that he previously did not appreciate that he required help.
I take into account that the Applicant has maintained abstinence from drugs and alcohol for a commendable period whilst in prison and detention. Whilst this extended period of sobriety may have provided more clarity around his offending and rehabilitation requirements, there is a dearth of evidence that points to the Applicant being more committed to rehabilitation.
The Tribunal has before it a pre-sentencing report prepared in July 2018 by a community corrections officer. The report states that the Applicant is “assessed as a medium risk of reoffending” nonetheless the Applicant had the potential to participate in a community-based order provided he remains engaged in his treatment plan which included contact with his mental health care practitioner and compliance with his treatment plan. It also states that he had “prior involvement with an alcohol and drug counsellor, although has not engaged since March 2018. He expressed enthusiasm to re-commence this engagement and was open to participate in further intervention to address his aggressive behaviour”. On that occasion the Applicant was granted a community correction order which he subsequently breached when he committed the affray on 10 November 2018.
With reference to the risk to the Australian community this is of particular concern to the Tribunal. On that occasion, the Applicant indicated a willingness and enthusiasm to engage in professional support to address issues related to his offending, including his drug and alcohol problems, but did not do so and went on to reoffend just months after being issued with the resulting community correction order.
Conclusion as to the protection of the Australian community
The evidence before the Tribunal supports the conclusion that there is a medium risk that the Applicant may reoffend. There is insufficient evidence to show that the Applicant has been rehabilitated or that he has genuinely learnt how to manage his behaviour either in relation to drug and alcohol abuse or his offending specifically. The Tribunal does not have confidence that the Applicant is committed to his own rehabilitation as a consequence of past failures to maintain treatment measures and his reoffending whilst on the community based order. Whilst his sobriety in prison and detention is a solid start, his sobriety has not been tested whilst he has been at liberty. This is of particular concern in circumstances where the Applicant has identified his peers as being a poor influence on his behaviour.
The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. Given the serious nature of the harm that flows from offences of the nature committed by the Applicant, I consider that a medium risk of further harm of a similar nature is unacceptable. I conclude that the primary consideration of protection of the Australian community weighs strongly in favour of non-revocation of the cancellation decision.
Primary Consideration B: Best interests of minor children
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction further stipulates that when considering the best interests of the child, the following factors must be considered where relevant:
(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.
As previously mentioned, the Applicant has a young son who was born in June 2017. The child lives with his mother who is currently in a relationship with the Applicant.
The Applicant was present at the birth of his son. After his son was born, the Applicant and Ms IT separated. Whilst they have now resumed their relationship, he was not living with Ms IT and his son for a period prior to being arrested. Subsequent to that, the Applicant has been incarcerated or in detention since December 2018. Clearly this has limited the Applicant’s interactions and exposure to his son and the Applicant confirmed at the hearing that he had not physically seen his son since being incarcerated.
The Applicant maintains that his son loves him, runs to him when he sees him and cries when he puts him down or needs to leave. The Applicant also maintains that he and his son speak over the phone. Based primarily on the evidence of Ms IT, I accept that the Applicant and his young child have an existing bond in spite of the impediments of gaol and detention.
The Applicant contends that he provides financial support for his son, but the Tribunal does not accept this as being substantial as he has variously been unemployed, in detention or incarcerated for most of his son’s life.
Ms IT gave evidence at the Tribunal where she presented as an intelligent individual and responsible parent who has taken full responsibility for her son’s upbringing whilst the Applicant has been unable to.
The Applicant also has two nephews and two nieces in Australia who are minors. He says he loves them and plays a significant role in their lives. He said he takes them to parks or to the movies; buys them presents; and supports them when he has extra money. He says that they will be upset if he is made to leave Australia.
The Tribunal accepts that revocation of the visa cancellation would be in the best interests of the Applicant’s child, and to a lesser extent that of his nieces and nephews. For these reasons Primary Consideration B weighs signifcantly in the Applicant’s favour.
Primary Consideration C – The expectations of the Australian community
The relevant paragraphs in the Direction
In making an assessment of the weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to any overarching principles and guidance provided by the Direction.[1] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that a non-citizen should not hold a visa.
[1] Ministerial Direction No. 79, paragraphs 6.2(1) and 6.3(1)-(7).
The evolution of the Australian community’s ‘expectations’
Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
In 2003, Deputy President Block of this Tribunal said that one must look to the expectations of’ ‘… the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.’[2]
[2] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336, [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[3] The learned Deputy President thought this paragraph leads a decision-maker to:
…conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times.[4]
[3] ETWK and Minister for Immigration and Border Protection [2017] AATA 228, [102]-[103].
[4] Ibid [102].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection:[5]
In substance this consideration is adverse to any applicant…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 has been convicted of serious crimes.[6]
[5] [2017] FCA 1466, [76]-[77] (“YNQY”).
[6] Ibid [76].
The learned Mortimer J also thought the last two sentences of paragraph 13.3 of the Direction:
… [are] 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.
…
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…[7]
[7] Ibid [76]-[77].
In Afu v Minister for Home Affairs,[8] Bromwich J said:
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…The Tribunal was required to give effect to those norms which is precisely what it did.[9]
[8] [2018] FCA 1311, [85] (“Afu”).
[9] Ibid.
In FYBR v Minister for Home Affairs,[10] Perry J observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[11] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”[12]
[10] [2019] FCA 500 (“FYBR”).
[11] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per the superseded Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[12] FYBR, [42].
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Perry J’s reasons and approach to the expectations of the Australian Community: see FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the ‘expectations of the Australian community’ cannot be measured or determined as if a provable fact. It is an assessment of community values made on behalf of that community;[13]
(b)the Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;[14]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the ‘expectations of the Australian community’, and the Tribunal should have “due regard” of those statements, if made;[15]
(d)in assessing the weight attributable to Primary Consideration C, decision-makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this primary consideration is a matter for the decision-maker.[16]
[13] Afu, [85].
[14] FYBR, [42].
[15] FYBR v Minister for Home Affairs [2019] FCAFC 185, [74] citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[16] Ibid, [77] (Charlesworth J) and [105] (Stewart J)
The Australian community expects non-citizens to obey Australian laws while in Australia. As noted, the Applicant has an extensive and long history of breaking the law.
In assessing all the relevant evidence against the requirements of the Direction, I find that the expectations of the Australian community weigh in favour of non-revocation of the cancellation decision.
OTHER CONSIDERATIONS
In deciding whether to revoke the cancellation of the Applicant’s visa, I must take into account the other considerations listed in Direction No. 79, where relevant.
Other Consideration A: International non-refoulement obligations
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.
No evidence was advanced that is relevant to this other consideration. Accordingly, this other consideration is afforded no weight.
Other Consideration B: Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides that decision-makers are to have regard to how long the non-citizen has resided in Australia.
The Applicant has been in Australia since he was seven years old and, as identified by his representative, that is the vast majority of his overall lifetime and the entirety of his adult life. He was educated in Australia and he has not departed the country since arriving as a child.
It is contended that he has made a contribution to the Australian community through gainful and remunerative employment. He has immediate family, a partner, child, friends and acquaintances in Australia and they will be affected by his removal. The Tribunal accepts that the Applicant has strong ties to Australia and the Australian community.
The Tribunal finds that the strength, nature and duration of the ties weigh in favour of cancelling the revocation decision.
Other Consideration C: Impact on Australian business interests
This part of the Direction stipulates that this consideration should only generally be given weight where non-revocation would significantly compromise the delivery of a major project or the delivery of a major service in Australia. There is no evidence from either party that this was the case in the Applicant’s particular circumstances, and therefore, this consideration is afforded no weight.
Other Consideration D: Impact on victims
The Direction provides that decision-makers should take into account the impact on victims where information is available. There is no evidence before me which directly relates to the views or impact of revocation on the victim. Consequently this consideration weighs neutrally.
Other Consideration E: Extent of impediments if removed
This part of the Direction requires the Tribunal to consider the extent of impediments the Applicant may face if he is removed. I accept that the Applicant is not familiar with New Zealand, having arrived here as a child and never returning.

The Applicant is a young man; 22 years of age and in good physical health. His rehabilitation will likely require access to medical and support services in New Zealand that are comparable to what is available in Australia and he will have equal access to these services as other citizens of New Zealand.
Employment prospects and general economic conditions in New Zealand are comparable to those in Australia. There is no language or other significant cultural barriers.
The Tribunal notes that the New Zealand government provides support to its citizens who have been deported. The Applicant also has two siblings residing in New Zealand that could provide some support.
The Tribunal finds that this consideration weighs slightly in favour of revocation.
CONCLUSION
As mentioned earlier, section 501CA(4)(b) of the Act stipulates two alternative conditions required to exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (i) the Applicant must be found to pass the character test, or (ii) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
The Applicant’s serious offending precludes him from passing the character test in section 501(6) of the Act.
I have considered the specific circumstances relating to the Applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations.
The primary considerations relating to the protection of the Australian community and expectations of the Australian community are strongly in favour of not revoking the cancellation decision. The Applicant is guilty of serious and, on occasion, violent offences committed over an extended period of time, which have betrayed the trust of the Australian community. It is a privilege for non-citizens to be able to live in Australia. The Australian community has an expectation that this privilege will not be abused.
The Applicant has a young child who would benefit from having access to both his parents. There is no doubt that Ms IT would be saddened by the Applicant being deported. To a lesser extent, the rest of his family would also be impacted. These factors weigh in the Applicant’s favour and carry significant weight in favour of revoking the cancellation decision with the Tribunal.
The other considerations relating to the strength, nature and duration of the Applicant’s ties to Australia and the impediments if removed to New Zealand also weigh in the Applicants favour, but moderately so.
I acknowledge that the Applicant has been sober since going to prison and that he has no doubt found the experience of being incarcerated a strong deterrant. However, having regard to the considerations in the Direction, the Tribunal is not persuaded that the Applicant’s rehabilitative efforts are satisfactory, relative to the risk of future harm to the Australian community should he resume his reoffending.
The Australian community will face an unacceptable risk of further harm if the Applicant remains in Australia. It follows from the application of the guiding principles in paragraph 6.3 of the Direction that I am not satisfied that there is another reason why the cancellation decision should be revoked.
DECISION
For the reasons outlined above, the Tribunal decides that the decision under review, being the decision of a delegate of the Respondent dated 16 December 2019, not to revoke the mandatory cancellation of the Applicant’s Subclass 444 Special Category (Temporary) visa pursuant to s 501(3A) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

.........[sgd]...............................................................
Associate
Dated: 16 March 2020

Date of hearing: 3 March 2020

Solicitors for the Applicant: Ms Jennifer Samuta, Samuta McComber Lawyers

Solicitors for the Respondent: Ms Subasha Prasad, MinterEllison

[2020] AATA 543

16 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date of hearing:	3 March 2020
Solicitors for the Applicant:	Ms Jennifer Samuta, Samuta McComber Lawyers
Solicitors for the Respondent:	Ms Subasha Prasad, MinterEllison