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

[2021] AATA 1138

PYDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1138 (23 April 2021)

Division:GENERAL DIVISION

File Number:          2021/0556

Re:PYDZ

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R Maguire

Date of Decision:                   23 April 2021

Date of Written Reasons:      4 May 2021

Place:Brisbane

the reviewable decision is affirmed.

............................[SGD]...............................

Member R Maguire

Catchwords

MIGRATION – non-revocation of mandatory cancellation – Class BF Transitional (Permanent) Visa (Code 808) – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – consideration of Ministerial Direction No 90 – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1985 (Cth)

Cases

Ali v Minister for Home Affairs (2020) 380 ALR 393

Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, 521

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016)153 ALD 337

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Minister for Home Affairs v Omar (2019) 272 FCR 589

Minister for Immigration and Border Protection v Makasa [2021] HCA 1

Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese and Minister for Immigration and Border Protection (2015) 256 CLR 203

REASONS FOR DECISION

Member R Maguire

4 May 2021

1. The Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 29 January 2021[1] made pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made under subsection 501(3A) of the Act to cancel the Applicant’s Class BF Transitional (Permanent) visa (code 808) visa (“the visa”).

   [1] Exhibit G1, G Documents, G2 at pages 13-31.

2. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg. 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under section 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.

3. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act the person has a substantial criminal record as defined by section 501(7). Relevantly, section 501(7) states:

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

   …

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

4. The Applicant is a 44 year-old male citizen of the Philippines.[2] He first arrived in Australia on 26 June 1991 at the age of fourteen years, and has not departed since.[3]

   [2] Exhibit G1, G Documents, G2 at page 127.

   [3] Exhibit G1, G Documents, G4 at page 353.

5. On 8 October 2004, the Applicant was sentenced to four years’ imprisonment for an offence of grievous bodily harm.  On 16 October 2019, the Applicant was convicted in the Magistrates Court of Queensland of charges including Receiving Tainted Property and Possessing Tainted Property and sentenced to imprisonment for 10 months, to be suspended for twelve months after serving two months (concurrent).[4]

   [4] Exhibit G1 G documents G 2 at pages 47-48.

6. On 12 December 2019, whilst the Applicant was serving a term of imprisonment (that is, in actual criminal custody) the Respondent, pursuant to section 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test because of the operation of section 501(6)(a) (substantial criminal record) on the basis of section 501(7)(a), (b), or (c) of the Act[5] i.e. that he had been sentenced to 12 months or more imprisonment in consequence of the sentence he received in 2004.

   [5] Exhibit G1, G Documents, G2 at pages 218-223.

7. Notice of this decision was given to the Applicant by hand on 13 December 2019.[6] In accordance with Regulation 2.52(2)(b) the Applicant was invited to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant requested revocation by the Minister of the mandatory cancellation[7] on 19 December 2019 within the period and in the manner specified.

   [6] Exhibit G1, G Documents, G7 at page 357.

   [7] Exhibit G1, G Documents G2 at pages 83-87.

8. On 29 January 2021, the Respondent decided not to revoke the visa cancellation decision made under section 501(3A) of the Act,[8] and on 9 February 2021 the Applicant made the present application to this Tribunal for a review of that decision.[9] The Tribunal has jurisdiction to review this decision pursuant to section 500(1)(ba) of the Act.[10]

   [8] Exhibit G1, G Documents G2 at pages 10-31.

   [9] Exhibit G1, G Documents, G1 at pages 4-9.

   [10] The Act, section 500(6B).

9. The hearing of the instant application took place on 13, 14, 16, 19 and 22 April 2021. The Applicant appeared via video link, and was represented on the first day of the hearing by his mother, Mrs  PYDZ, and on subsequent days by his sister, Miss PYDZ. Mr Tal Aviram of Clayton Utz appeared for the Respondent. The Tribunal received oral evidence from the Applicant, who was in the migration zone on shore in Australia, Mrs PYDZ and Miss PYDZ.[11] The complete suite of written material forming the exhibit record is further particularised in the Exhibit Annexure attached hereto and marked “A”.

   [11] Note: To uphold a confidentiality order issued by this Tribunal, Miss PYDZ refers to the Applicant’s sister, Mrs PYDZ refers to his mother.

10. By operation of section 500(6L)(c) of the Act, when an application is made to the Tribunal under section 501CA(4) of the Act, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1), the Tribunal is taken at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975[12] to affirm the decision under review. At the hearing, the representatives of the parties agreed that for the purposes of this review, and section 500(6L)(c), the 84^th day is Friday 23 April 2021. It is therefore open to the Tribunal to make a decision prior to midnight on that date.

    [12] (Cth).

    ISSUES

11. Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:

    1The 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.

12. It is not disputed that the Applicant has made the representations required by section 501CA(4)(a) of the Act.

13. There are therefore two issues presently before the Tribunal:

    ·whether the Applicant passes the character test; or

    ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

14. If the Applicant succeeds on either ground, the cancellation of the Applicant’s visa should be revoked.

15. In considering section 501(CA(4), it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[13]

    …there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[14]

    [13] [2018] FCAFC 151.

    [14] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016)153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

    DOES THE APPLICANT PASS THE CHARACTER TEST?

16. The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in section 501(7). Section 501(7)(c) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

17. The Applicant was convicted in the District Court of Queensland on 8 October 2004 of Grievous Bodily Harm, and sentenced four years’ imprisonment.[15]

    [15] Exhibit G1, G Documents, G2 at page 42.

18. As the custodial term imposed was “a term of imprisonment of 12 months or more”, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in section 501(7)(c) of the Act.

19. At the hearing, the Applicant conceded that he does not pass the character test as prescribed by section 501 of the Act.

20. The Tribunal therefore finds that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act and that the Applicant therefore cannot rely on section 501CA(4)(b)(i)[16] of the Act for the mandatory cancellation of his visa to be revoked.

    [16] Note: This provides that the Minister is satisfied that the person passes the character test (as defined by section 501).

21. The remaining question therefore is found in section 501CA(4)(b)(ii), namely whether there is another reason why the original decision should be revoked.

    IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?

    Ministerial Direction No. 90

22. In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 90”) has application.[17]

    [17] On 8 March 2021, the former applicable direction, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

23. The purpose of the Direction as stated in paragraph 5.1(4) is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

24. Paragraph 5.2 of the Direction sets out the principles which bind this Tribunal:

    (1)The principles below 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 factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.

    (2)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.

    (3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (5)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious, that even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

25. Paragraph 6 of the Direction requires that informed by the principles in paragraph 5.2, decision-makers must take into account the considerations in sections 8 and 9, where relevant to the decision.

26. Paragraph 7(1) of the Direction provides that in applying the considerations, (both primary and other) information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

27. Paragraph 8 of the Direction sets out the following primary considerations in making a decision under s. 501(1), 501(2), or 501CA(4):

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

    (2)Whether the conduct engaged in constituted family violence;

    (3)The best interests of minor children in Australia;

    (4)Expectations of the Australian community.

28. The Other Considerations which must be taken into account are provided in a
    non-exhaustive list in paragraph 9 of the Direction. These considerations are:

    (a)International non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims;

    (d)links to the Australian community, including

    (i)strength, nature and duration of ties to Australia;

    (ii)impact on Australian business interests.

29. The Tribunal notes these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[18]

    …Direction 65 [now Direction 90] 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.

    [18] [2018] FCA 594 at [23].

30. Prior to the hearing, the Respondent made submissions drawing the attention of the Tribunal to the recent High Court decision in the case of Minister for Immigration and Border Protection v Makasa [2021] HCA 1 (‘Makasa’). In that case, the High Court held that where the Tribunal had previously made the decision on the same factual basis, it was not open to the Minister to re-exercise the two-stage discretion to cancel under section 501(2) of the Act, but that the Minister could do so if subsequent events or further information provided a different factual basis for the foundation of the requisite suspicion, at the first stage of the requisite two-stage decision-making process.

31. This submission arose in the present case because prior to the decision made by the Minister’s delegate on 12 December 2019 to cancel the Applicant’s visa under section 501(3A), the Applicant’s visa had previously been cancelled under section 501(3A) on 7 December 2015[19] but then on 13 October 2016, the cancellation was revoked under section 501CA(4).

    [19] Exhibit R2, Respondent’s Supplementary G Document SG7, page 124.

32. The submission proceeded on the basis that the current case was not concerned with section 501(2), but rather section 501(3A) of the Act, and there was no principled reason to read the decision in Makasa as applying mutatis mutandis to section 501(3A) cancellation decisions.

33. The Tribunal accepts this submission. However, there is a further reason why the present case must be distinguished from Makasa. The decision made on 13 October 2016 was made under section 501CA(4)(b) which allowed for revocation of the original decision if the Minister was satisfied (i) that the person passed the character test or (ii) that there was another reason why the original decision should be revoked.

34. The decision to revoke the original decision must be taken to been made in reliance upon section 501CA(4)(b)(ii), i.e. that there was another reason why the decision should be revoked. The revocation decision did not absolve the Applicant from failing to pass the character test. It simply acknowledged that there was “another reason” to revoke the decision. Importantly, section 501(5) provides “If the Minister revokes the original decision, the original decision is taken not to have been made.”

35. In this context, the decision taken on 12 December 2019 to cancel the Applicant’s visa ought not to be seen as a re-exercise of the power to cancel under section 501(3A). The extensive further offending by the Applicant provided ample basis for determining that there was no longer “another reason” which might operate in favour of the Applicant.

36. Having regard to the foregoing, the Tribunal is of the view that the law and circumstances applicable in Makasa are readily distinguishable in the present case.

1. The Respondent made further submissions as to whether the present case is affected by the Full Federal Court’s judgement in Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229 (‘Schwart’). Before the Tribunal it has not been submitted that the Applicant was the holder of anything other than a Class BF visa at the time of cancellation. Were he was the holder of another visa in addition to that one, the decision to cancel his visa would have been operative to cancel any other visa held by him in consequence of section 501F. The Tribunal is not satisfied that the decision in Schwart is relevant in the circumstances of this case.

2. The Tribunal now turns to a more detailed consideration of Direction No. 90.

   PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

3. In considering Primary Consideration 1, paragraph 8.1(1) of the Direction requires that decision-makers should keep in mind 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. Decision makers are to have regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens 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.

4. Paragraph 8.1(2) of the Direction requires consideration to be given to:

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

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

   Nature and seriousness of conduct

5. Paragraph 8.1.1(1) of the Direction requires that in considering the nature and seriousness of the non-citizen’s offending or other conduct to date, decision makers must have regard to the following:

   (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

   i)violent and/or sexual crimes;

   ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

   iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

   (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

   i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

   ii)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;

   iii)conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

   iv)where the non-citizen is in Australia, 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 or an offence against section 197A of the Act, which prohibits escape from immigration detention;

   (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii), or (b)(i) above, the sentence imposed by the Court for a crime or crimes;

   (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

   (e)the cumulative effect of repeated offending;

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

   (g)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).

   Risk to the Australian community

6. Paragraph 8.1.2(1) of the Direction requires that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future becomes lower as the seriousness of the potential increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated maybe unacceptable.

7. Paragraph 8.1.2(2) of the Direction requires that in considering the risk that maybe posed by the noncitizen to the Australian community, decision-makers must have regard to, cumulatively:

   a)    the nature of the harm two individuals or the Australian community should be non-citizen engage in further criminal or other serious conduct; and

   b)    The likelihood of the non-citizen engagement further criminal or other serious conduct, taking into account:

   i)information and evidence on the risk of the noncitizen reoffending; and

   j)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

   c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

   Primary consideration 2 – Family violence committed by the non-citizen

8. Paragraph 8.2(1) of the Direction reflects the Government’s serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

9. Paragraph 8.2(2) of the Direction provides that the consideration of family violence is relevant in circumstances where:

   a)    the non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven, howsoever described, that involve family violence; and/or

   b) There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, in the preparation of Family violence, and the noncitizen being considered under section 501 or section 501 CA has been afforded procedural fairness.

10. Paragraph 8.2 (3) of the Direction requires that in considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:

    a)the frequency of the noncitizen’s conduct and/or whether there is any trend of increasing seriousness;

    b)The cumulative effect of repeated acts of family violence;

    c)Rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

    i.the extent to which the person accepts responsibility for their family violence related conduct;

    ii.The extent to which the noncitizen understands the impact of their behaviour on the abuse and witness of that abuse (particular children);

    iii.efforts to address factors which contributed to their conduct; and

    d)Whether the noncitizen has reoffended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status should the noncitizen engage in further acts of family violence.

    Primary consideration 3 - Best interests of minor children in Australia

11. Paragraph 8.3(1) of the Direction requires decision-makers making a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of child affected by the decision.

12. Paragraph 8.3(2) of the Direction provides that this consideration applies only if the child is, or would-be, under 18 years old at the time of the decision.

13. Paragraph 8.3(3) of the Direction provides that if there are two or more children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

14. Paragraph 8.3(4) of the Direction provides that in 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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way whether physically, sexually or mentally;

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

    8.4 EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

15. Paragraph 8.4 of the Direction details the expectations with the of the Australian Community as follows:

    (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a noncitizen has engaged in serious conduct in breach to this expectation, or where there is an unacceptable risk that they may do so the Australian community, expects the Government to not allow such a noncitizen to enter or remain in Australia.

    (2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through contact, in Australia or elsewhere, of the following:

    (a) acts of family violence; or

    (b) causing a person to enter it into, or being party to (other than being a victim of), a forced marriage;

    (c) commission of serious crimes against women, children, or other vulnerable members of the community such as the elderly or disabled; in this context, “serious crimes” includes crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, commercial abuse/material exploitation or neglect;

    (d) Commission of crimes against government representatives or officials due to the position they hold, or in the performance of the duties; or

    (e) Involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to war crimes, crimes against humanity and slavery; or

    (f) worker exploitation.

    (3) The above expectations of the Australian community apply regardless of weather the noncitizen poses a measurable risk of causing physical harm to the Australian community.

    (4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

    Other considerations

16. Paragraph 9(1) of the Direction requires decision makers to take into account other considerations, including, (but not limited to):

    a) International non-refoulement obligations in accordance with paragraph 9.1;

    b) extent of impediments if removed in accordance with paragraph 9.2

    c) Impact on victims in accordance with paragraph 9.3

    d) Links to the Australian community reflecting the principles in paragraph 5.2 and paragraphs 9.4.1 to 9.4.2.

17. The Tribunal now turns to a consideration of the evidence having regard to the Direction.

    EVIDENCE BEFORE THE TRIBUNAL

    Documentary evidence

18. On 19 December 2020, the Applicant submitted a Request for Revocation form[20] together with a Personal Circumstances form,[21] as well as additional pages.[22] The Applicant also submitted nineteen letters from himself,[23] as well as letters of support from family, friends, mental health practitioners, Drug ARM, evidence of educational courses, and his children’s birth certificates.[24] On 30 June 2021, the Department wrote to the Applicant inviting comment on further information received[25], and the Applicant responded on 13 July 2020[26]. On 5 January 2021, the Department again wrote to the Applicant inviting comment on further information received[27] and a further response was received from the Applicant.[28] Further letters of support followed,[29] and on 29 January 2021 the decision under review was made.[30]

    [20] Exhibit G1 G Documents G2 Pages 83-87.

    [21] Exhibit G1 G Documents G2 Pages 88-125.

    [22] Exhibit G1 G Documents G2 Pages 126-141.

    [23] Exhibit G1 G Documents G2 Pages 142-183.

    [24] Exhibit G1 G Documents G2 Pages 184-217.

    [25] Exhibit G1 G Documents G2 Pages 239-241.

    [26] Exhibit G1 G Documents G2 Pages 242-253.

    [27] Exhibit G1 G Documents G2 Pages 263-265.

    [28] Exhibit G1 G Documents G2 Pages 266-282.

    [29] Exhibit G1 G Documents G2 Pages 283-286.

    [30] Exhibit G1 G Documents G2 Pages 10-31.

19. In the decision under review, the delegate provided the following summary of the submissions by the Applicant:[31]

    [31] Exhibit G1 G Documents G2 Page 18, paragraph 11.

    ·     He arrived in Australia almost 30 years ago during June 1991, aged 14 years, and has lived here continuously since then, so he has personal links to Australia.

    ·     He has been in a de facto relationship with his partner, an Australian citizen who suffers from schizophrenia, and needs his support, for around 10 years.

    ·     He has a minor Australian citizen stepdaughter from his current relationship, who needs him to remain in Australia.

    ·     He has four adult children from a previous marriage and he fears not seeing them again if returned to the Philippines due to financial constraints.

    ·     His mother, sister, three stepbrothers, two sisters-in-law, brother in law and his former wife also reside in Australia.

    ·     He accepts that his drug use lead to his offending behaviour and he is extremely apologetic for the impact it has had upon his family.

    ·     He was a victim of sexual abuse in a Brisbane boy’s home when he was aged 15 years.

    ·     He has expressed an interest in assisting the elderly and mentally ill in a community along with attending weekly counselling sessions upon his release.

    ·     He has provided certificates confirming that he has a Certificate II in Hospitality (Kitchen Operations) along with completing a requirement towards a Certificate I in Business.

    ·     He has previously worked in a saw-mill and a suburban market along with being a machine operator and undertaking office cleaning.

    ·     He has been diagnosed and treated for chronic schizophrenia, type II Diabetes and chronic hepatitis C.

    ·     He is mindful of the current Philippines government’s reputation for having people with a drug history like himself killed.

    ·     He’s concerned about the level of medical support he will receive for his mental health concerns if returned it to the Philippines.

20. On 12 March 2021, the Applicant provided further documents as follows to the Tribunal.

21. The Applicant provided a further statement[32] in which he apologised for his past conduct, and sought forgiveness. He said that he had been in Australia for 30 years and had not been back to the Philippines. He acknowledged his past violent charges, but said that violence had not been repeated in a decade. He said he had taken a course in anger management, and that his recent offending had not attracted sentences of more than 12 months. He acknowledged that he received “a couple of warnings” about the future conduct, and blamed his offending on his and his girlfriend’s homelessness.

    [32] Exhibit A1.

22. The Applicant said that he had a mental disability which was no excuse, but he need his medication, which was not available in the Philippines, and he would suffer tremendously. He said that his mental illness and diabetes would probably be left untreated there. He said he would have no means of looking after himself, and no family support, as they are all in Australia.

23. The Applicant said his girlfriend of ten years also has a mental illness, and needs him for emotional and financial support.

24. The Applicant explained his domestic violence order breaches by saying that they were only breaches because he was concerned about the well-being of his children, and wanted to check on them. He said there was no violence involved in the beaches.

25. The Applicant stated that he wanted to get a full-time job to support his and his girlfriend’s life and future. He said that he only offended because of his homelessness, and his charges were “only trespass and not bad ones I’ve only did two mounts (sic)”.

26. The Applicant described himself as a kind, understanding, patient, not demanding, and easy-going person who “would take my shirt off to anyone that need it.” The Applicant acknowledged that his previous bodily harm offence was a violent one, but he had undertaken a course and taken his punishment.

27. The Applicant acknowledged that he had a drug problem and said he wanted to take responsibility for it. He promised to attend church, stop taking drugs, not to re-offend or breach domestic violence orders again. He was prepared to go to rehabilitation, meetings, and counselling. He expressed a desire to help the homeless and disabled, and to do as much as he could for his baby stepdaughter, caring for his sick girlfriend, and trying get a full-time job. He said that his girlfriend had found a stable home for him, and he could stay with her and look for job to secure his future. He said that he would have a full-time job when he gets out as a carer for his girlfriend.

28. The Applicant also provided a handwritten statement[33] dated 19 February 2021 by Dennis T, who said that he had known the Applicant for 20 years, and he had supported him with his unspecified medical condition. He said that they have never fought, and he had never been violent toward him. He described the Applicant as a non-violent compassionate and helpful loving friend.

    [33] Exhibit A3.

1. The Applicant also provided an undated handwritten statement[34] by his ex-wife who described herself as his wife, and you said that they fell in love at the age of 16 years, and they have now known each other for 27 years. She said that she had three children which were not his, yet he loved them and treated them as his own. She described him as “painful and annoying” when under the influence of drugs, and said that with reference to his domestic violence order breaches, that his conduct was non-violent.

   [34] Exhibit A4.

2. The Applicant also produced a copy of what appears to be the cover page of an Anger Management Book.[35]

   [35] Exhibit A5.

3. The Applicant also produced an undated handwritten statement[36] by S. PYDZ who described herself as one of his four children. She acknowledged his bad conduct, but said that she saw a different side of him. She said he been nothing but gentle, caring and protective. She said his heart was pure and deep down he was a good man, and asked that he be given another chance. She said he had never hurt anyone and never would. She said that she needed him to walk her down the aisle, and wanted him to know her children.

   [36] Exhibit A6.

4. The Applicant also produced a cover sheet[37] headed “Stress Management Book 1 – What is Stress?”.

   [37] Exhibit A7.

5. In addition, the Applicant provided a two page handwritten statement[38] dated 24 February 2021 by his mother, Mrs PYDZ. Mrs PYDZ said that in 2013 she had called the police to take him to hospital as he was “under the influence”, and concerned for her and family members. She said that the Applicant had never threatened or hurt any family member or their neighbours. She described him as having personal emotional troubles and lacking personal confidence. She said he had ambitions and wished society would give him a fair go. She said that he was willing to better himself, and go to therapy or rehabilitation, and hoped that the government of Australia could support him on this path. She said that the family was willing to attend counselling with him, and he previously started attending Al-Anon meetings. She spoke positively of his personal qualities, describing a very lovable, kind, helpful generous church going person, with a good heart. She spoke of his support for her when she had been convalescing following surgery. His support was very important to her as she is in her senior years.

   [38] Exhibit A8.

6. The Tribunal has before it a number of transcripts of proceedings in Queensland courts. These are discussed in chronological sequence.

7. On 22 June 2001, the Applicant appeared before Hoath DCJ in the District Court, and was sentenced to 2 and a half years’ imprisonment. An extract of His Honour’s sentencing remarks[39] is as follows:

   His Honour: [PZYD], you have pleaded guilty to one count of armed robbery with personal violence. The circumstances of the offence are that on 8 June last year, you approached the complainant, (redacted) at Clayfield Railway Station and took his mobile phone from him. You then pulled out a kitchen knife and threatened the complainant by waving the knife at him. At the same time you also threw a kick at the complainant which connected him in the groin.

   Although you have denied involvement in the offence when first question by the police and through your counsel cross-examined the complainant at the committal proceedings, I take into account that you did give an early indication of your intention to plead guilty to this offence.

   You are 24 years of age and you have a criminal history that includes a number of offences of dishonesty. Although those convictions with the exception of a large number recorded on 24 February 1995 when you were 17 years of age are for relatively minor offences, you have persisted to commit offences.

   Fortunately, in this case no, physical injury was suffered by the complainant. Nonetheless, such offences often cause great trauma to the victims and for that reason must be regarded as serious offences. Despite your age, with your criminal history, you must expect a significant period of imprisonment for an offence of this nature.

   I sentence you to imprisonment for a period of 2 ½ years, and I order that that term of imprisonment be suspended after you have served a period of nine months imprisonment, and you must not commit another offence punishable by imprisonment within a period of three years if you are to avoid being dealt with fully suspended term of imprisonment.

   [Tribunal’s emphasis]

   [39] Exhibit G1 G Documents, G2 pages 77-79.

8. On 8 October 2004, the Applicant appeared before Howell DCJ and was sentenced to four years imprisonment for causing grievous bodily harm to commence from the end of activated suspended sentences. An extract of His Honour’s remarks[40] follows:

   [40] Exhibit G1 G Documents, G2 pages 69-76.

   His Honour: Could you stand please. Your response to chances given to you in the criminal law causes obvious concern. The Courts, on a number of occasions, had structured orders in your interests. I shall not refer to anything as a child. On the 24^th of February 1995 for 10 offences of housebreaking and 10 offences of stealing that occurred between September 1993 and January 1994 and on a separate indictment for three offences of house breaking, one of entering a dwelling house with intent, four stealing and one of attempted false pretences, that occurred between February 1994 and April 1994, the learned Judge was compassionate indeed. The property lost as a result of the criminality of you and your co-accused amounted to $37,243, his Honour commenting that only a few thousand dollars was recovered. Other minds may well have imposed a different sentence but you were in fact not sentenced, you were provisionally dealt with leniently on the basis that you behaved yourself for two years and performed 200 hours’ unpaid community service. There was not one cent of compensation ordered.

   What is clear in relation to that order and other community service orders is that community service just did not appeal to you at all. Community service was a very good sentencing option at that stage. It had a punishment component, you were doing something useful for the community, it was to be done in your leisure time and it might have also helped keep you out of a bit of mischief. Work was possibly close to the first word you crossed out of your dictionary and somewhat surprisingly, when you breached, you were breached twice in relation to a breach of community service, but His Honour’s order when you came back before him for the breach was, in effect, to impose a sentence, an order that was much more favourable to yourself.

   He removed the community service. You had done some community service but it appears grudgingly and only towards the end when you possibly knew you were coming back before the Court for a breach. You did not have to do any more community service and he imposed a fine of $1100. A five figure amount of compensation– a five figure order–an amount of five figures for compensation might arguably have been ordered. It was not.

   Your response was that you did not pay any of the fine. I could sentence you today for non-payment of fine but some months later you breached the probation orders by committing the indictable offence of unlawful use of a motor vehicle. For that actual offence, you received the sentencing fiction of a totally suspended sentence, but most unsatisfactorily, the Probation Officer did not bring the matter - cause the matter to be brought back before the Court for breach of probation, so that you could have been sentenced for the original 29 offences of some seriousness.

   I can sentence you today but the end result will be that the prison term I impose for those offences will be concurrent, whereas if it had not been for that unsatisfactory– the unsatisfactory features of inefficiency and delay, you could have anticipated they would have been cumulative.

   On the 8^th of June 2000, you committed the events of armed robbery with personal violence. You were armed with a knife. A second Judge on the 22^nd June 2002 clearly stuck his neck out to be as compassionate as possible, to structure a sentence in your interests. The order was 2 ½ years’ imprisonment suspended after nine months for a period of three years with a declaration of 252 days of custody. So you would have been released within a couple of weeks on that order, and you merely had to behave yourself for three years.

   Prior to the serious unlawfully causing grievous bodily harm in the new indictment before me, you breached such suspended sentence on a number of other occasions. Before I refer to that, for an offence of fraud (the circumstances of which have been outlined) on the 11^th of February 2002 again a sentencing fiction was imposed, six months’ imprisonment wholly suspended for 2 years. You merely had to behave yourself for two years. You breached both suspended sentences by virtue of the unlawful grievous bodily harm before me today. You also breached both orders by a number of simple offences.

   You appeared before Courts on three separate occasions but the offences were breach of domestic violence order on the 19^th of April 2003, breach of bail on 3 June 2003, another breach the domestic violence order of the 1^st of August 2003 and another breach of a domestic violence order on the 2^nd of April 2004 and a simple drugs offence on the same day.

   You have further breached the District Court suspended sentence by offences of stealing and possession of tainted property on the 12^th of June 2004 and certain offences were committed whilst on bail. Such involves a number of features that the courts view seriously.

   In relation to the grievous bodily harm charge before me today, you were a guest in the home of the complainant. You asked him for some advice on sensitive personal matters. He, with principle and courage, gave you some very sensible advice and that was to get off proscribed drugs. Your reaction was cowardly and serious indeed. When he turned his head away from you, you picked up a weapon of some wickedness in the circumstances, the 5 kg free–weight which is pictured in Exhibit 6 and you struck him a blow with obvious force to the back of his head which caused a hole on his scalp of a size of about 50 cent coin and caused portion of the skin, the scalp to be later found on the floor.

   It seems you would have had to have hit him on two further occasions, one to cause the facial fracture, and another occasion to cause the serious injury to his elbow. The actual grievous bodily harm was to the elbow. The medical reports and reports of occupational therapists and victim impact statements from Exhibits 2 to 5 detail the seriousness of injury.

   Clearly there has to be a substantial custodial term for the grievous bodily harm before me, and I clearly accept Crown counsel’s submissions that the suspended sentences should be activated in full, although the separate activated suspended sentences will be concurrent. I accept his submission that such should be cumulative on the grievous bodily harm sentence. …

   You have a wife and four children. It is a pity you had not thought a bit more about them before your most recent grievous bodily harm. You do have responsibilities in that regard.

   It seems as if you have had a reasonable work record on occasions. There are some attempts at rehabilitation, as referred to, including the contents of Exhibit 9.

   Thrown in the melting pot is the fact that your voluntary ingestion of proscribed drugs has resulted in drug induced psychoses, which have had a further result of six voluntary admissions in the Mental Health Unit of a hospital since August 2003, and that can result in some amelioration of sentence….

   I activate in full the balance of the sentence partially suspended in the Brisbane District Court on the 22^nd of June 2001, [redacted], and for the events of armed robbery with personal violence, you are sentenced to 21 months’ imprisonment.

   I activate in full the sentence wholly suspended in the Caboolture Magistrates Court on the 11^th of February 2002, and for the original offence of fraud you are sentenced to 6 months imprisonment, the said sentence to be concurrent with the aforesaid in 21 months imprisonment.

   I direct that the sentence for the unlawfully causing grievous bodily harm commence from the end of the sentence for the above activated suspended sentence.

   For the offence of unlawfully causing grievous bodily harm, you are sentenced to imprisonment for four years. I recommend that you be eligible to apply for a post-prison community-based release order after 16 months…

   For the original offences on [redacted], that is for each of the original 10 house breaking and 10 stealing, and on [redacted] for the original three house breaking, one of entering a dwelling house with intent, four of stealing and one of attempted false pretences, for each such original offence you are sentenced to imprisonment for 12 months.

   The sentence for that, as I said, would have been cumulative except for the delay and inefficiency, arguably for which a probation officer has certain questions to answer, but in the circumstances those sentences will be concurrent.…

   It is important by virtue of the material placed before me that when you come out of jail that you have a structured and organised and orderly existence, particularly to help you in relation to any problem you may still have in relation to proscribed drugs. The ball will be in your court, do you understand those matters?

   PRISONER: Yes, your Honour.

9. On 31 March 2010, the Applicant received concurrent sentences totalling six months imprisonment from Chief Magistrate Rinaudo in the Sandgate Magistrates Court on 17 charges including breach of a domestic violence order, dangerous operation of a motor vehicle possession of a dangerous drug, methylamphetamine, and two counts of assaulting police officers. In the course of his remarks[41] the Chief Magistrate observed:

   His Honour: Now I note your history. You have had a lot of offences over a long period of time … I note that drugs are a serious problem, that you’ve been making some efforts while you have been in custody to try to break the cycle of drug use, and also other substances such as alcohol which is causing you to offend. All right. I have taken into account the circumstances that surround some of the offences that have been outlined today; however, you’ve effective (sic) been in and out of jail now for at least ten years, haven’t you, since 2010?

   Defendant: [indistinct] yeah.

   … So you really need to make an effort to see whether you can avoid re-offending and avoid coming back before the court. It’s going to be up to you.

   [41] Exhibit G1, G Documents G2 pages 63-68 at 64.

10. On 11 April 2012, the Applicant was sentenced to six months imprisonment in the Brisbane Magistrates Court by Magistrate Kluck for breaching a domestic violence order, and taking into account 142 days of presentence custody, and was ordered to be paroled immediately.

11. On 8 April 2013, the Applicant, having already served 164 days in custody was sentenced to two years probation by Magistrate Guttridge in the Pine Rivers Magistrates Court for assaults occasioning bodily harm.

12. On 9 April 2015, the Applicant was sentenced in the Brisbane Magistrates Court by Magistrate Daley to eight months imprisonment for breaches of a domestic violence order, two enter dwellings, stealing, and assault occasioning bodily harm. An extract of the Magistrates sentencing remarks[42] follows:

    You’ve co-operated to some extent with the police officers as best you could and a lot of the times you were in a psychotic condition, and I accept that was a significant delay in getting the reports for the mental health and your pleading–it was only indicated, but you couldn’t plead until the Mental Health Court had cleared you to come back here. Now– And I accept that you’re remorseful and that you’ve been on treatment and the treatment has changed since July 2013 and that you’ve been fairly compliant with that and that you attend regularly to your psychiatrist and so there’s been better engagement of late, and I’ll accept that the auditory hallucinations relate to the persecution of family members in relation to it and that being on the new medication– there’s been no breaches of DV although there have been breaches – significant break and enter and burglary in relation to it and I think the possession charges may have been - no. They - but certainly you indicated to the police that you were break and entering for drug purposes in relation to it I think you said.

    Now, you have an extensive history. Now, this may be too because you’ve had an extensive medical mental health time in relation to it and we’ve had– well, in relation to –you’ve had, as set out by the prosecution, all these offences also which is an aggravating feature– were committed while you were on probation. There has been a significant history of breaches of DV and I’ll accept that they are of a similar flavour to the ones that were committed that you’ve pleaded today and you’ve served terms of or been given terms of imprisonment of six months in relation to it, …

    For the actual breach I’ll convict and not further punish and with a conviction recorded, but I’m going to resentence him on it. There was little compliance with the order. There was some telephone conversations but over the extensive period there was little compliance, there was a refusal to address your drug issues and even though you have been compliant with your new drug regime since July 2013, it didn’t at all improve your attitude towards probation in relation to it and he knew at the time, even in 2014, that you’re up on some serious charges and you continued to offend in relation to it and I accept that the general deterrence is against a background of serious mental health issues, but there has to be this personal deterrence. One of the charges of the burglary was at 10:30 at night and the person actually came home and confronted by you and that’s quite serious when you’re break and entering and the complainant actually confronts you in relation to it and with the probation order, again it was an assault with a weapon in relation to it.

    While your solicitor has put very good submissions to me in relation to what I should do, I’m not accepting all of them. I feel that you need some supervision in relation to it and some really deterrent because – and you’re fairly stable now and the only reason you can come up with is not complying with the probation is the fact that you didn’t have money. Well you’ll have to sort through your issues and get money because I’m giving you– and I’ve looked leniently I think and I’m going to give him eight months for the breaches of the DV, the two enter dwellings and stealing and the AOBH re-sentencing. I’m going to fix parole today…

    If he doesn’t comply, he is now in a very stable situation where he wasn’t wanted on any other orders before, but he thumbed his nose at this probation order which gives me some concern.

    [42] Exhibit G1, G Documents G2 pages 53-56.

    Evidence at Hearing

13. The hearing of this review took place via video link with the assistance of an interpreter in the Tagalog and English languages. On the first day of the hearing, the Applicant was represented by his mother. On subsequent days he was represented by his sister. Miss PYDZ. The hearing was initially listed for April 13 and 14. On April 12, the Applicant’s mother, informed an officer of the Tribunal that she did not have a copy of the G Documents or other Respondent material (Supplementary G Documents, SFIC or Jurisdiction submission). She also informed the officer that she had not been able to have the Applicant’s handwritten submissions typed so as to make them legible.

14. On the same day, the solicitors for the Respondent sent the Applicant’s representative an email (provided to the Tribunal) with Mimecast links to the documents referred to in the previous paragraph. That email stated that the author understood that hard copies of the supplementary G Documents (totalling in excess of 4,000 pages) had been delivered to her address on 8 April 2021, and they were in the process of sending the G Documents to her.

1. At the hearing, Mrs PYDZ gave evidence, and said she would try to do everything she could to help her son to remain in Australia with his children. She said things are really hard in the Philippines because of Covid-19. She expressed worry that he will be deported, particularly because of his underlying illnesses. If her son is permitted to remain in Australia she would help him to go to rehab and counselling, and to be a better person. Progress on the first day of the hearing was limited. The Applicant (in Brisbane) was unable to give a clear indication of what documents he had in his possession, and it was clear that his mother (in Adelaide) did not have all relevant documents. Arrangements were made for both the Applicant and his mother to both receive a full suite of documents.

2. Mr Aviram, for the Respondent, reserved his cross examination until such time as the witness had all relevant documents before her.

3. Mr PYDZ gave evidence in chief and promised that if he is given a chance to stay in Australia, he will go to rehab, counselling, look after his girlfriend and his mother and children and step daughter. The Applicant told Mrs PYDZ that he would stay away from drugs and his past conduct, and promised that he would be of good behaviour for the community. He will be the carer for his sick girlfriend, and will be a good person.

4. The hearing was then adjourned until Friday 16 April so as to allow for the delivery of documentation.

5. On Thursday 15 April, a further document was filed on behalf of the Applicant, enlivening the operation of ss 501(6H) and 501(6J) of the Act. The Respondent objected to the late filing on the basis of those provisions.

6. At the resumed hearing on 16 April, after discussion of the High Court’s decision in Uelese and Minister for Immigration and Border Protection (2015) 256 CLR 203, the Tribunal foreshadowed sitting on Tuesday 19 April in order to facilitate the consideration of the document filed on 15 April.

7. It was confirmed that both the Applicant, and his sister, who was now representing him, had all relevant documents before them. The Applicant confirmed the accuracy of his history of offending as set out in Annexure A to the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”). The full suite of documents set out before the Tribunal are recorded in attachment A.

   Day 2 of Hearing

   Cross examination of Mrs PYDZ

8. Mr Aviram cross-examined Mrs PYDZ, and she told him that she and her son came to Australia in 1991 when her son was 14 years old. Before they came to Australia her sister cared for her son while she went to work. Mrs PYDZ said she had four sisters who live in different remote areas outside Manila. When she came to Australia, her daughter initially remained in the Philippines with one of her sisters. She said the Applicant had met his biological father. Her husband died in 2001, and she travelled to the Philippines regularly by herself to visit her elderly father and see her sisters. She was referred to, a Remission Assessment from Borallon Correctional Centre[43] which recorded that the Applicant was “popular in his country of origin and left behind friends and a large extended family”. Mrs PYDZ disagreed with the report, and said that her son was not popular in the Philippines. He had cousins who lived outside Manila, but did not have many friends. He did not have much contact with his father’s family.

   [43] Exhibit R2, Respondent’s Supplementary G Documents SG 41 at page 1626.

9. Mrs PYDZ told the Tribunal that she applied for a Protection Order[44] on 19 July 2010, because she wanted him to wake up to himself and his drug addiction. She confirmed that the document was in her handwriting, and that she had stated at item 19A, “Me and my daughter live in fear of my son, he has been doing this for a long time and we are scared of him specially when he is on drugs”.

   [44] Exhibit R2, Respondent’s Supplementary G Documents page 1220.

10. Mrs PYDZ said every time the Applicant came home he was worried someone was hurting her and his sister. She said he had never threatened them. The only reason she sought the order was to “wake him up”. Mrs PYDZ departed from what she had said in the application, and said that she was never scared of him, but was just worried about his health. When asked if she had provided false information in support of the application, she requested interpretation, and then responded she was just worried about him taking drugs, and he never threatened her in any way at all, and she just did not want him to take drugs.

11. Mrs PYDZ confirmed that she had written at item 19B of the application “Christmas time he came to the house, he got angry, he was on drugs”. She read from items 19B and 19C of the form where she stated “I believe that [PYDZ] will keep terrifying me and my daughter”. Her attention was drawn to item 22, where she had asserted that he had been issued with a weapon or firearms licence in Queensland, and contradicted the written statement she made, and said what was recorded in the form was a mistake. She confirmed that she had sought orders preventing him from coming within 100 metres of her or her place of residence.

12. When referred to item 11 of an application[45] to revoke or vary a domestic violence order on 13 December 2010 in the Sandgate Magistrates Court, Mrs PYDZ confirmed that she had written:

    [PYDZ] promise me that he will not take drug any more, That he will be good character and not to do any stupid thing and that he will change for good, and that he had enough with his bad life.

    [errors in original]

    [45] Exhibit R2, Respondent’s Supplementary G Documents at page 1277.

13. When referred a further application[46] to revoke or vary a domestic violence order dated 14 April 2011, Mrs PYDZ acknowledged her signature on the document and confirmed that in seeking additional conditions she wrote:

    I don’t want [PYDZ] to stay in my house or come near my house…

    I add this condition because we always had argument or fight for his addiction and I am scared and at moment he is in the Hospital in Mental Hospital.

    [46] Exhibit R2, Respondent’s Supplementary G Documents at page 1286.

14. The application sought the condition to apply for one year, and the reason for this was stated as “His taking drugs again”.

15. Mrs PYDZ was referred to[47] a further Application to vary or revoke a Domestic Violence Order filed 15 September 2011, and confirmed the condition she wanted added was that she did not want the Applicant to stay at her home because he had been on drugs and getting aggressive, and she was scared of him, but added that he never hurt her, they just argued.

    [47] Exhibit R2, Respondent’s Supplementary G Documents at page 1297.

16. Mrs PYDZ was referred to[48] a further Application to vary or revoke a Domestic Violence Order filed 9 May 2012, and confirmed that she had sought cancellation of the existing order because she wanted him to get his passport so he could have a holiday in the Philippines, and see how lucky he was to be living in Australia. She said that he had not travelled to the Philippines since coming to Australia. She confirmed that she had written that “he promised me that he had enough with drugs and he’s looking for work”.

    [48] Exhibit R2, Respondent’s Supplementary G Documents at page 1309.

17. Mrs PYDZ was referred to[49] a further Application to vary or revoke a Domestic Violence Order filed 26 October 2012 seeking an order until December 2013. She confirmed that she had written that she did not want him to live with her anymore, as he was taking drugs again and not behaving himself. In the body of the application she also stated that she did not want to be near him or see him anymore. He had attended at her home at 4:00AM that day, believing that someone was threatening her and his children, and she had called the police.

    [49] Exhibit R2, Respondent’s Supplementary G Documents at page 1318.

18. Mrs PYDZ was referred to[50] a further Application to vary or revoke a Domestic Violence Order filed 30 August 2013,[51] where she had sought revocation of the order, because the Applicant was “behaving himself and not take drugs for months now”. She wanted him to stay at her place so she could try to help him. However, the Applicant had returned to drugs after a period of time.

    [50] Exhibit R2, Respondent’s Supplementary G Documents at page 1324.

    [51] Ibid at page 1326.

19. Mrs PYDZ said that she moved to South Australia in 2014,[52] and the Applicant stayed living in Queensland, and she has stayed with him and taken him to counselling twice in 2018.

    [52] Transcript, page 30, lines 25-35.

20. When asked why the Tribunal should accept that now would be any different, from the past Mrs PYDZ said this time he is in a serious situation facing deportation, and this would change his life.

21. Mrs PYDZ said she had been aware of his Departmental warning regarding his visa in 2007, and the revocation of a prior mandatory cancellation of his visa, and acknowledged that the Applicant had subsequently continued to offend. She said at the present time he is very serious about his life and has learned a lot of lessons, is now in detention, and is ready to better himself and attend rehabilitation.

22. Mrs PYDZ said that if the Applicant is released into the community he will live with his girlfriend, and do all the housework. Mrs PYDZ also said that the Applicant’s case manager would help him find a place in Queensland. She said that she usually visited Brisbane and stayed with his ex-wife and children and saw him every day. However, she had not been to Queensland since Covid-19 struck.

23. Mrs PYDZ was referred to a report[53] dated 10 September 2010 from Forensic Psychiatrist Dr Donald Grant. She was referred to a paragraph, wherein it was stated that the Applicant:[54]

    had until recently, intermittent access to the children at his mother’s house, supervised by his mother. It was reported that his ex-wife was unhappy with this arrangement as the children had reported that Mr [PYDZ] and a female acquaintance used IV drugs in front of them. Mandatory notification was made by mental health staff to the Department of Child Safety on this inpatient admission and also on a previous admission in October 2009.

    Mr [PYDZ] has been a persistent user of amphetamines since he was 18 years old.

    [53] Exhibit R2, Respondent’s Supplementary G Documents at page 3367.

    [54] Exhibit R2, Respondent’s Supplementary G Documents at page 3368.

24. Mrs PYDZ confirmed the intermittent access arrangements as described, but denied knowledge of the drug use said to have occurred in front of the children.[55]

    [55] Transcript, page 65, lines 1-4.

25. Mrs PYDZ said that she lives with her daughter and her husband in Adelaide.

    Cross examination of the Applicant

26. Mr Avaram cross-examined the Applicant regarding his statement at Exhibit A2, where he said that his offences after the warnings had been minor. He acknowledged that they were still serious charges.[56] He said he had been desperate and had no house.

    [56] Transcript, page 67, lines 46-50.

27. He agreed that he was given a warning in 2007, and had been given a chance again in 2015. The Applicant was referred to the transcript of the District Court proceedings in 2001 before Hoath DCJ.[57] He remembered the circumstances of the offence, and said that he borrowed the phone and then said he was going to keep it, and he kicked the phone’s owner in the bottom of his legs and ran away. He said that he had a stick, not a kitchen knife, but had to plead guilty on the basis of the facts alleged. He agreed that he had denied involvement at interview. He agreed with the statement by the judge regarding “such offences often cause great trauma to the victims and for that reason alone must be regarded as serious offences”. The Applicant acknowledged committing further offences whilst under suspended sentence, and expressed remorse.

    [57] Exhibit G1, G Documents, G2 at page 77.

28. The Applicant was then referred to the comments of Howell DCJ where he set out the criminal.[58] He agreed with the judge’s comment that, “the learned judge was compassionate indeed”. And that only a few thousand dollars of $37,943 had been recovered, and that no compensation ordered. The Applicant agreed with the remark that he had on that occasion been dealt with leniently, and that community service did not appeal to him at all. He did not disagree with any of the judge’s sentencing remarks. He agreed that he did not pay his fine imposed because he had no money, and a first born child, and was working and supporting them. He remembered the unlawful use of a motor vehicle referred to in the transcript. He acknowledged that he went to gaol for a “most horrific wrong offence”[59] but said that he never laid a hand on any of his children.

    [58] Exhibit G1, G Documents, G2 at pages 69-70.

    [59] Exhibit G1, G Documents, G2 at page 70.

29. He was referred to the remarks concerning and denied having a knife at the time of the offence on 8 June 2000,[60] and said that he had a black stick. Howell J agreed that the sentencing judge had “stuck his neck out” and agreed with the sentencing comments. He agreed that he had breached the suspended sentence on a number of occasions. He admitted that he had breached DVOs about ten times.

    [60] Ibid at page 72.

30. The Applicant confirmed that he was a guest in the home of the grievous bodily harm victim, whom he had struck in the head multiple times with a five kilogram dumbbell, described by the judge as “a weapon of some wickedness” used in conduct that was “cowardly and serious” and agreed with the facts read to him. The Applicant described his own actions as “an evil thing to do”. He acknowledged the advice given to him in the judge’s sentencing remarks.

31. The Applicant was referred to a report[61] dated 3 May 2007 of the Borallon Correctional Centre which was as follows:

    Offenders Account

    Offender [PYDZ] describes “hearing voices” at the time of the offences and as a result was admitted to the mental health unit at the Prince Charles Hospital. He reports that he was receiving prescription medication but believed that the victim “had kidnapped his mother” and been lying to him. He also claims that during the period of his offending he was under the influence of speed. Offender [PYDZ]’s case file indicates that he demonstrates limited victim empathy making statements such as “the victims received compensation for the injuries”. Furthermore, showed poor problem solving and thinking skills by claiming that because a public telephone was broken he approached a member of the public and took their mobile telephone. He also adds that when he took the telephone he thought that the victim “would think it was a joke”. Offender [PYDZ] also appears to minimise his behaviour by siting (sic) his self reported mental health issues and blaming his illicit drug use as acting as a disinhibitor.

    [61] Exhibit R2 Respondent’s Supplementary G Document SG 4 page 94.

32. When it was put to him that he “demonstrates limited victim empathy”, he said, as he often repeated during his evidence that he wished it could have happened to him. He said that he hoped his victims got every support. He denied thinking that “the victim would think it was a joke”. He denied using force on the victim he kicked, but said he knew the victim would have been angry traumatised and uneasy, and would hate him.[62] He only wanted the phone to make a phone call and it was a spur of the moment thing. He denied minimising his behaviour, then when referred to an incident in custody of an altercation with another prisoner, said this was a “play fight – a horse fight”.

    [62] Transcript, page 83, line 13-30.

33. The Applicant confirmed that he had undertaken courses between November 2004 and September 2006,[63] and that he had a forklift ticket. He agreed that as at 3 May 2007 he had a Release/Relapse plan described at page 97 as a “realistic and achievable written release and relapse plan”.[64]

    [63] Exhibit R2, Respondent’s Supplementary G Documents SG4 page 96.

    [64] Transcript, page 85, lines 1-10.

34. The Applicant was referred to a letter which he agreed[65] he wrote on 31 July 2006. Extracts of the letter included:

    Since my imprisonment in October 2004 I have finally had the help I needed all along to address my offending behaviour. I have successfully completed the prison Anger Management, Cognitive Skills and Substance Abuse programs. I have faithfully participated in Narcotics Anonymous and Alcoholics Anonymous meetings every week. I have improved my literacy and numeracy skills as a part-time student while working in prison.

    [65] Exhibit R2, Respondent’s Supplementary G Documents SG4 page 102-4.

35. The Applicant agreed that that he went back to offending after he completed the programs and was released from prison in 2007. He said that he worked for three years after he got out of gaol. He got back with his old friends and that led him to offending.

36. The Applicant was referred to a passage in his letter where he blamed lack of a father figure for his offending. It was put to him that this was minimising his offending. Notwithstanding his earlier evidence that he had written a letter, the Applicant said that he thought someone else had written the letter for him, but he nevertheless acknowledged having signed it.

37. The Applicant was referred to a letter[66] dated 1 November 2006 by Dr Cassandra Griffin of the Prison Mental Health Service wherein it was stated:

    Mr [PYDZ] has a diagnosis of schizophrenia that dates back some years. He is currently well-controlled, attends appointments with our service willingly and takes antipsychotic medication. On released to the community following this incarceration Mr [PYDZ] will be returning to live with his wife and children and will be referred to a community-based mental health service for continuation of his specialist care.

    Mr [PYDZ] shows good insight into his current and future treatment needs and is committed to continued engagement with specialist care on release.

    In the event that Mr [PYDZ]’s visa is cancelled and he is required to return to the Philippines, he will be separated from his wife and children who are all Australian citizens. This separation would, in my opinion, be detrimental for them all and significantly impact on Mr [PYDZ]’s mental health and I am writing this letter to support Mr [PYDZ]’s application for his visa to be continued.

    Mr [PYDZ] shows a good understanding of the circumstances of the offence for which he is serving and the impact his deteriorated mental health at the time had on his offending. He shows a degree of remorse in this regard and a commitment to engaging in all necessary rehabilitation in this regard.

    [66] Exhibit R2, Respondent’s Supplementary G Documents SG4 at page 99-100.

38. The Applicant said that all of the statements in the letter were correct.

39. The Applicant was then referred to a letter[67] dated 22 June 2006 wherein it was recorded that he was registered with Career Employment Australia and would receive support to secure future employment.

    [67] Exhibit R2, Respondent’s Supplementary G Documents SG4 at page 109.

40. The Applicant was also referred to a letter[68] dated 9 May 2006 from Drug Arm offering him ongoing support to remain substance free, and an undated letter[69] from his mother written around the same time in which she stated “I honestly feel that he has changed his ways and is now rehabilitated” as well as a letter[70] from wife dated 4 August 2006 in which she stated “I know and believe deep down in my heart that he has changed for the best”.

    [68] Exhibit R2, Respondent’s Supplementary G Documents SG4 at page 111.

    [69] Exhibit R2, Respondent’s Supplementary G Documents SG4 at page 116-117.

    [70] Exhibit R2, Respondent’s Supplementary G Documents SG4 at page 118-119.

41. The Applicant was also referred to a statutory declaration[71] he made dated 19 June 2007 wherein he stated that he was in the process of trying to obtain work, and that there was nothing stopping him from making a positive contribution to the Australian community if he was provided with a second chance. The Applicant agreed he was given support in 2006-7 to avoid drugs etc, and that despite living with his wife and children and undertaking courses in prison he returned to drug use and offending. He was aware at the time that this might impact on his visa. When asked why this time would be different, he said he was more mature now.[72] He said it would be risky on his release living with his girlfriend, but that he wanted to change.

    [71] Exhibit R2, Respondent’s Supplementary G Documents SG7 at page 161-169.

    [72] Transcript, page 93, lines 5-30.

1. He has had several items of correspondence from the Department which made clear that his visa’s jeopardy was ongoing. He has been dicing with deportation for well over a decade. He has been the beneficiary of “sentencing fictions” of wholly suspended sentences on numerous occasions. Perhaps these may have given him a false sense of security. The leniency with which the courts have dealt with him has itself been the subject of judicial criticism. He has been given every opportunity to mend his ways, and then some. He has acknowledged that he has “thumbed his nose” at these opportunities.

2. The Tribunal considers this Applicant has abused and exhausted the high level of tolerance offered him by the Australian community.

   Conclusion: Primary Consideration 4

3. The Tribunal accordingly finds that this Primary Consideration 4 is to be given heavy weight in favour of affirming the non-revocation decision under review.

   OTHER CONSIDERATIONS

4. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.

   9.1 International non-refoulement obligations

5. The Applicant made claims within his submissions to the Department that he would be at risk of the harm, if he were removed to the Philippines, because of the following grounds:

   ·‘I probably get shot cause tha Phillipines kill anyone that uses drugs and with mental health they probably tie me up and put me somewhere I couldn't be seen’;[117]

   ·‘They kill people in tha Phillipines with drug history the now President do I don’t feel safe at all’;[118]

   ·‘pilipnies is nott a place for me they kill people there with a drug history just like that’;[119] and

   ·‘I wont breack tha law again i got nobody back in pilipines and make thing worse i probably face the firing squad if i get deported’.[120]

   [errors in original]

   [117] Exhibit G1, G-Documents, G2, page 118.

   [118] Ibid, page 139.

   [119] Ibid, page 161.

   [120] Ibid, 243.

6. These claims raise for consideration the question of Australia’s non-refoulement obligations.

7. Paragraph 9.1 of the Direction relevantly provides:

   1A 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, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.

   2In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section l97C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

   3However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen’s visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.

   4Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

   5International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

   6It may not be possible at the section 501/section 501CA stage to consider non- refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non- refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen’s favour that claimed harm will occur and make a decision on that basis.

   7Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non- citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

   8If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will 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 — see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.l2AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia’s international non- refoulement obligations

8. The Tribunal must give meaningful consideration to clearly articulated claims of harm or hardship made by the Applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. [^5] It must assess the risk of harm and/or hardship that the Applicant claims he will face if removed to the Philippines in its own right. That assessment will also inform assessment of whether the Applicant is someone to whom Australia owes non-refoulement obligations. This cannot be deferred because he is able to apply for a Protection Visa. The Tribunal’s engagement with such claims, however, relates to the question of whether there is another reason why the cancellation decision should be revoked, rather than the more expansive analysis routinely undertaken for Protection Visa applications.[^6]

   [5] Ali v Minister for Home Affairs (2020) 380 ALR 393; Minister for Home Affairs v Omar (2019) 272 FCR 589, [34]–[44].

   [6] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, 521 [27]–[28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650, [28].

9. The Respondent made the following submissions in relation to non-refoulement:[11]

   [11] Exhibit R1, page 17-18, paragraphs 74-76, 98-102

   ‘[74] Paragraph 9.1 of Direction 90 deals with the impact of Australia's non-refoulement obligations on a decision whether to revoke the cancellation of the Applicant's visa.

   [75] The Applicant has made a number of claims in respect of the harm he fears if returned to the Philippines (addressed at [98] of this SFIC). The Respondent contends that these claims have not been explained or particularised by the Applicant and do not appear to invoke non-refoulement obligations.

   [76] The Respondent contends that these claims do not enliven any of Australia's non-refoulement obligations and that there is nothing on the face of the country information which would indicate that non-refoulement obligations would be owed to the Applicant in this case.

   …

   [98] The Applicant has made a number of claims in respect of the harm he fears if returned to the Philippines. Specifically, the Applicant has claimed (errors in originals):

   (a) "I probably get shot cause tha Phillipines kill anyone that uses drugs and with mental health they probably tie me up and put me somewhere I couldn't be seen" (G2, 118); and

   (b) "I wont breack tha law again i got nobody back in pilipines and make thing worse i probably face the firing squad if i get deported" (G2, 243).

   [99] In short, the Applicant's contention appears to be that, because he uses illicit drugs, and because the Philippines has very strict laws about the use of illicit drugs, he will face serious criminal or extra-judicial sanctions if returned to the Philippines.

   [100] The Applicant has referred to no evidence in support of the generalised assertion that he will be shot if returned to the Philippines. It is a matter of public record that the Philippines maintains harsh drug laws and that the country's government, led by President Duterte, has conducted a particularly aggressive "war" against drugs since 2016. However, in circumstances where the Applicant has no criminal record in the Philippines, has had no involvement in drug activity in the Philippines, and where he has repeatedly stated that he has given up drugs, there is no reason to suggest that he would be a target of such governmental action.

   [101] The Applicant's assertion that he would be "tied up" as a consequence of his mental health disorder is equally without substance. The Applicant has referred to no evidence in support of his assertion. There is nothing in the country information provided to suggest that individuals suffering from mental health conditions are "tied up" in the Philippines. Indeed, there appears to be no evidence that individuals suffering from mental health disorders are targeted or persecuted in any way in the Philippines. Rather, the 2018 DFAT Country Information Report states that (SG33, 692):

   Stigma around mental health conditions does exist, but the issue is not taboo. Many young people in particular have better knowledge and understanding of mental health issues and are more willing to openly discuss the topic.

   The Respondent contends that the existence of stigma around an issue does not equate to the assertions raised by the Applicant.

   [102] In the Respondent's submission, absent any evidence that the Applicant would, himself, face any particular risk if returned to the Philippines, the Applicant's vague assertions as to the risk of being shot or tied up in the Philippines should not be given any weight.’

10. There is no evidence before this Tribunal that this Applicant has ever engaged in illicit drug use in the Philippines, or has previously come to the adverse notice of police or courts in the Philippines in relation to drugs, or indeed for any reason. The Applicant has assured the Tribunal of his intended efforts to avoid falling back into drug usage. Hopefully he is able to sustain these efforts, and if he keeps his word he ought not to be the subject of any concerns arising from possible treatment as a drug user.

11. The Applicant’s articulated concerns for his safety in the Philippines are largely implicitly founded on an assumption that he will fail in his stated objective of taking all steps to remain drug free. There is however insufficient evidence before the Tribunal that the Applicant’s drug use would result in him being at any risk of harm should he be returned to the Philippines.

12. Whilst there is no doubt that the Applicant has a significant and concerning drug history, in the process of his return to the Philippines, he has the opportunity of leaving that past behind him, and if he takes this path, the impact of his drug history on his life in the Philippines should be minimised. There is insufficient evidence before the Tribunal that the Applicant’s past drug history would result in any risk of harm should he be returned to the Philippines.

13. In relation to his claims regarding mental health, no medical practitioner who has provided evidence to this Tribunal has expressed the view that the Applicant will not be able to source any necessary medical treatment to assist him to address his mental health issues. However the Tribunal accepts that the onus will be on him to seek out such treatment. There is insufficient evidence before the Tribunal that the Applicant’s mental health would result in any risk of harm should he be returned to the Philippines.

14. The Applicant is eligible to apply for a Protection Visa, although there is no evidence he has done so. The Tribunal is not required to carry out the same level of analysis in this matter as would be expected in the assessment of a Protection visa application. At the time of applying for a Protection Visa, any claims and additional evidence can be more comprehensively assessed. While the results of a Protection Visa application cannot be speculated upon, the Tribunal notes the Minister’s Department is compelled to assess non-refoulement claims in compliance with Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b) (Direction 75). The Applicant would not be removed while the Protection Visa application is being determined: s 198(5A)(b) of the Act. Moreover, Direction 75 requires that when considering an application for a Protection Visa, an assessment must first be made about whether refugee and complementary protection criteria are met before considering ineligibility criteria.

15. Some issues raised by the Applicant were relevant to impediments if removed to Philippines under Other Consideration 9.2 and have been dealt with below. 

16. The evidence currently before the Tribunal does not support a conclusion that the applicant has a well-founded fear of persecution on the basis of his past drug use or mental health should he be removed to the Philippines, and therefore does not give rise to Australia’s non-refoulement obligations. The Tribunal therefore allocates a neutral weight to this Other Consideration.

    9.2 Extent of impediments if removed

17. In considering the extent of impediments the Applicant may face in the Philippines in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of the Philippines), the Tribunal has taken into account that the Applicant is presently 44 years of age, and suffers mental illness and diabetes. Treatment for both conditions are available in the Philippines. He speaks the language, and has spent a significant part of his life there prior to coming to Australia, and has relatives there. In addition his mother visits there regularly.

18. The Applicant does not appear to have very close friends anywhere. Whilst statements from his ex-wife, alleged partner, and some of his children were placed before the Tribunal, none of them attended to give evidence. The Tribunal accepts that he will face some difficulties re-settling himself in the Philippines and this will provide him with challenges.

19. There is no country information before the Tribunal that the Applicant will not be able to seek and receive any medication, counselling or other treatment which he may require in the Philippines. Neither is there any information before the Tribunal as to the standard of medical treatment he may receive in the Philippines.

20. Overall the Tribunal views this consideration as being of moderate weight in favour of revocation.

    9.3 Impact on victims

21. There is no specific evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims, and the Tribunal therefore makes no finding in relation to this consideration, and gives it neutral weight.

    9.4.1 Links to the Australian community including:

    This consideration is comprised of:

    (iii)Strength, nature and duration of ties to Australia; and

    (iv)impact on Australian business interests.

22. The Tribunal accepts that this Applicant has lived in Australia for all but approximately fourteen years of his life. Indeed, he has lived in Australia continuously for thirty years. The Tribunal accepts that to the extent that he has friends, they reside in Australia, as do his closest relatives, his mother and sister, each of whom have an indefinite right to remain in Australia. However, other than the pandemic, there does not appear to be any legal impediment to any of them visiting him in the Philippines, and indeed there is an incentive to do so in so far as his mother and sister are concerned as they have relatives there.

23. The Tribunal nevertheless accepts that if the Applicant is to be deported, there will be significant emotional hardship for both himself, and his entirely undeserving mother, and sister, both of whom have enough to cope with. Both of them, in their evidence tried hard to paint the best possible picture of the Applicant and his prospects of rehabilitation.

24. The Tribunal gives this consideration weight in favour of revocation of the decision to cancel his visa.

    9.4.2 Impact on Australian Business interests

25. There is no evidence before the Tribunal so as to enliven consideration of this sub-paragraph. It is not relevant.

    Findings: Other Considerations

26. The application of the Other Considerations in the present matter can be summarised as follows:

    (a)international non-refoulement obligations: neutral weight;

    (b)extent of impediments if removed: slight weight in favour of revocation.

    (c)impact on victims: neutral; and

    (d)Links to the Australian community: moderate weight in favour of revocation;

    CONCLUSION

27. The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.

28. In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal finds as follows:

    (a)Primary Consideration 1 weighs extremely heavily in favour of non-revocation;

    (b)Primary Consideration 2 weighs extremely heavily in favour of non-revocation;

    (c)Primary Consideration 3 weighs in favour of non-revocation;

    (d)Primary Consideration 4 weighs heavily in favour of non-revocation; and

    (e)To the extent that Other Considerations weigh in favour of revoking the mandatory visa cancellation decision, they cannot outweigh Primary Considerations 1, 2 and 4.

1. Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

2. Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

   DECISION

3. The decision under review is affirmed.

I certify that the preceding 290 (two hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

..........................[SGD]...........................

Associate

Dated: 4 May 2021

Dates of hearing:	13 April 2021, 16 April 2021, 19 April 2021, 22 April 2021
Date final submissions received:	19 April 2021
Advocate for the Applicant:	Miss PYDZ, Sister
Solicitors for the Respondent:	Mr T Aviram, Clayton Utz

ATTACHMENT A – EXHIBIT REGISTER

Exhibit Number	Description of Exhibit	Date of Document	Party	Filing Date
G1	Section 501 G Documents (G1 – G44, pages 1 – 401)	-	15 FEB 21
A1	Statement of Applicant	-	A	12 MAR 21
A2	Further Statement of Applicant	A	12 MAR 21
A3	Statement of Dennis	19 FEB 21	A	12 MAR 21
A4	Statement of Rosa	-	A	12 MAR 21
A5	Anger Management Book Cover	-	A	12 MAR 21
A6	Statement of Summer	-	A	12 MAR 21
A7	Stress Book Cover	-	A	12 MAR 21
A8	Statement of Mrs PYDZ	24 FEB 21	A	23 MAR 21
A9	Letter from Applicant to Tribunal	-	A	8 APR 21
A10	Letter from Miss PYDZ	15 APR 21	A	15 APR 21
A11	Statement of Miss PYDZ	-	A	19 APR 21
R1	Respondent’s Statement of Facts, Issues and Contentions: Including Annexure A- Applicant’s Criminal History; and Annexure B – Ministerial Direction 90	29 MAR 21	R	29 MAR 21
R2	Supplementary Section 501 G Documents SG1-43: contained in  Volume 1 part 1 (pages 1 – 682) Volume 1 part 2 (pages 683 – 1161) Volume 2 – (pages 1162 – 1497) Volume 3 part 1 – (pages 1498 – 2028) Volume 3 part 2 – (pages 2029 – 2639) Volume 4 – (pages 2640 – 3188) Volume 5 – (pages 3189 – 3958)	-	R	1 APR 21
R3	Respondent’s Submissions pertaining to jurisdiction (10 pages)	8 APR 21	R	8 APR 21
R4	Email from Department of Home Affairs archived on 6 April 2021	-	R	13 APR 21