QKJY and Minister for Immigration and Border Protection (Migration) - [2017] AATA 820

QKJY and Minister for Immigration and Border Protection (Migration) [2017] AATA 820 (8 June 2017)
Division:GENERAL DIVISION
File Number: 2016/4209
Re:QKJY
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member T Tavoularis
Date:8 June 2017
Place:Brisbane

The decision under review is affirmed.
........................[sgd].................................
Senior Member T. Tavoularis
CATCHWORDS
MIGRATION – review of decision not to revoke mandatory visa cancellation – where Applicant had a long-standing class XB subclass 202 Global Special Humanitarian Visa – s 501 character test – where Applicant had committed a number of offences – whether offences were “serious offences” – where applicant does not pass character test – whether a discretion to revoke the mandatory visa cancellation should be used – Direction No. 65 – primary and other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
CASES
NSWQ and Minister for Immigration and Border Protection
[2016] AATA 373

MKKR and Minister for Immigration and Border Protection [2016] AATA 458
Minister for Immigration and Border Protection v Le [2016] FCAFC 120
SECONDARY MATERIALS
Ministerial Direction No. 65
International Covenant on Civil and Political Rights(1966)
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (1984)
REASONS FOR DECISION
Senior Member T Tavoularis
8 June 2017
INTRODUCTION

This is an application for review of the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister” or “the Respondent”) not to revoke the mandatory cancellation (by virtue of s 501(3A) of the Migration Act (Cth) (“the Act”)) of the visa of the Applicant[1] pursuant to s 501CA(4) of the Act. Under s 500(1)(ba) of the Act, this Tribunal has jurisdiction to review the decision of the delegate.
[1] The Applicant’s name has been suppressed pursuant to a confidentiality order made under s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth).
BACKGROUND
The Applicant entered Australia as a UNHCR mandated refugee. He has remained in Australia on a Class XB Subclass 202 Global Special Humanitarian Visa.
This matter concerns the circumstances surrounding the cancellation of that visa on

1 May 2015, and the refusal of the Minister to revoke that cancellation.
The Applicant has a lengthy criminal history for offences committed in this jurisdiction since 2006. This offending eventually came to the Minister’s attention and in correspondence dated 17 September 2009, the Minister considered the possible cancellation of the visa (“the warning letter”).[2] On that occasion, the visa was not cancelled. Instead, the Minister’s delegate (via this letter) told the applicant this:
It has come to this department’s attention that you have a criminal record. I am writing to make you aware of the operation of section 501 of the Migration Act 1958 (the Act).
Subsection 501(2) of the Act states that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she passes the character test.
The character test is defined at subsection 501(6) of the Act, which sets out a number of different grounds under which a person may not pass the character test. A copy of section 501 of the Act is attached for your information. You should read this document carefully.
At present, no consideration is being given to cancelling your visa under section 501 of the Act. Your visa therefore continues to provide you with authority to remain in Australia.
The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.
(my underlining)
[2] Exhibit 3, T Documents, T8, p 175.
The abovementioned correspondence from the Minister (at the third page) contains a self-serving acknowledgement to be signed and dated by the applicant by way of confirmation of his understanding of the letter’s nature and effect.[3] It is apparent from the T-Documents that the third, or acknowledgement, page of this correspondence was signed by the Applicant and returned to the Respondent.[4]
[3] Ibid, p 177.
[4] Ibid, p 180.
The nature of the offending prior to 17 September 2009
For the purposes of certain legislative tests and thresholds that I will apply later in this decision, it is necessary to examine the Applicant’s offending.
The offending conduct of the Applicant before his receipt of the warning letter on
[5] Exhibit 2, Respondent’s SFIC, pp 2-4.
17 September 2009 is accurately summarised by the Minister’s representative at Part 3 of its Statement of Facts, Issues and Contentions (“SFIC”).[5] The list of offences running from 6 March 2006 until 26 August 2009 betrays a consistency and regularity of offending that can only be viewed as a blatant disregard for Australian lawful authority.
Although it may be arguable that his offending during this period is not necessarily at the high end of what may be termed “serious offending”, there is little or no room to doubt the Applicant has simply failed to grasp the very serious responsibility attaching to (a) the driving, management and control of a motor vehicle; and (b) the all too familiar catastrophic consequences of alcohol consumption on one’s capacity to properly manage a motor vehicle.
Interspersed with the combined themes of alcohol and driving offences are offences against the property of others, and against other persons, including a law enforcement officer.
The pattern of offending during this pre-warning letter period may be stated thus:[6]
[6] Exhibit 2, Respondent’s SFIC, pp. 2-4; Exhibit 3, T Documents, T2, pp 29-32, 49-54.
(a)6 March 2006 (Magistrates Court) – trespass – fined $200;
(b)29 May 2006 (Magistrates Court) – unauthorised dealing with shop goods – fined $250 and ordered to pay restitution of $10;[7]
[7] No conviction was recorded.
(c)25 July 2006 (Magistrates Court) – 2 counts of failure to appear in accordance with undertaking – fined $180;
(d)11 August 2007 (Magistrates Court) – failure to appear in accordance with an undertaking – fined $600;
(e)3 September 2007 (Magistrates Court) – unlicensed driving and high range driving under the influence of alcohol – 2 months’ imprisonment and disqualified from driving for 3 years;
(f)7 November 2007 (Magistrates Court) – found to have breached a probation order imposed on 19 October 2006;[8]
[8] No conviction recorded.
(g)7 July 2008 (a NSW Local Court) –
(i)
Disqualified driving – 3 months’ imprisonment and license disqualified for

2 years;
(ii)
Disqualified driving – 3 months’ imprisonment and license disqualified for

2 years;
(iii)Driving with middle range prescribed concentration of alcohol – 3 months’ imprisonment and licence disqualified for 2 years;
(iv)Receiving property stolen outside New South Wales – 3 months’ imprisonment.
The three-month custodial terms for each of the immediately preceding offences, particularised at (i), (ii), and (iii) if this sub-paragraph were ordered to be served concurrently. The three-month custodial term for the offence described at (iv) was cumulative on the earlier term of three months for the offending described at (i), (ii), and (iii). Therefore, the period of actual custody was six months in total.
(h)7 July 2008 – as a consequential part of the sentencing regime described in the immediately preceding sub-paragraph (g), the Applicant was dealt with for offences arising from his use of a motor vehicle under his care, management and control. Accordingly, the Local Court convicted him of the following five offences, but did not further punish him –
(i)Use of uninsured motor vehicle;
(ii)Exceeded speed;
(iii)Use of unregistered registrable Class A motor vehicle;
(iv)Driver/rider stated false name/address; and
(v)Class A vehicle displaying unauthorised number plate.
(i)16 April 2009 (Magistrates Court) –
(i)Convicted for failing to appear in accordance with an undertaking;
(ii)Driving under the influence of liquor (0.150 and over) - disqualified from driving for 6 months; and
(iii)
Convicted of driving while disqualified - disqualified from driving for

2 years.
Each of the two immediately preceding offences at (ii) and (iii) above were sentenced on a cumulative basis, that is, the Applicant was disqualified from diving for a total period of 30 months. The Applicant was also sentenced to four months’ imprisonment for each of the offences contained at (ii) and (iii) above. There is no available evidence as to whether these two sentences were to be served concurrently or cumulatively.
(j)26 August 2009 (Magistrates Court) –
(i)Convicted of contravening a direction or requirement (2 charges);
(ii)Assaulting or obstructing a police officer;
(iii)
Driving under the influence of liquor (0.150 and over) - sentenced to

12 months’ imprisonment and disqualified from driving for 12 months; and
(iv)Driving while disqualified - sentenced to 12 months’ imprisonment and disqualified from driving for 2 years.
For each of the immediately preceding offences, particularised at (iii) and (iv) above, the Applicant’s disqualification from driving was for the cumulative period of those respective disqualifications. That is, he was disqualified from driving for

3 years. His prison terms were also to be served cumulatively, that is, for a total period of 24 months. Further, with particular reference to the offences in the immediately preceding paragraphs (i) and (ii) above, the Applicant was convicted but no further penalty was imposed for these two offences.
The nature of the offending post 17 September 2009
After receiving the warning letter, the Applicant’s offending continued unabated. It can be summarised thus:[9]
[9] Exhibit 2, Respondent’s SFIC, pp. 2-4; Exhibit 3, T Documents, T2, pp 29-32, 49-54.
(a)21 June 2010 (Magistrates Court) – committing public nuisance – fined $500.
(b)28 July 2010 (Magistrates Court) – unauthorised dealing with shop goods – entered into recognisance in the sum of $150 to be of good behaviour for 4 months (no conviction recorded).
(c)30 August 2010 (Magistrates Court) – committing public nuisance – fined $250 (no conviction recorded).
(d)
5 November 2010 (Magistrates Court) – failing to appear in accordance with an undertaking – 7 days’ imprisonment, to be suspended for 6 months. I note that on 21 March 2011 and 11 April 2011, the Applicant appeared before the same court, which, on each occasion, ordered that his suspended sentence be extended by

1 day. It appears that this was for breaching the terms of his suspended sentence.
(e)21 March 2011 (Magistrates Court) – failing to appear in accordance with an undertaking – fined $250 (conviction recorded).
(f)11 April 2011 (Magistrates Court) – trespass (entering or remaining in dwelling or yard) – convicted (no penalty imposed).
(g)29 June 2011 (Magistrates Court) –
(i)Contravening direction or requirement; and
(ii)Possessing a knife in a public place or school.
For both of these offences, the Applicant was fined $400.
(h)15 July 2011 (Magistrates Court) –
(i)Breaching a bail granted condition;
(ii)Contravening a direction or requirement.
Convicted of both offences but no penalty was imposed.
(i)5 November 2012 (Magistrates Court) – failure to appear in accordance with an undertaking – sentenced to 14 days’ imprisonment, to be suspended for 8 months (concurrent).
(j)4 February 2013 (Magistrates Court) – failing to appear in accordance with an undertaking – sentenced to 14 days’ imprisonment (cumulative).
It is not immediately clear to me from the T-Documents,[10] as to whether the Applicant served a total of 14, or 28 days for the offending particularised at (i) and (j) above. As I read the relevant document, I consider it safe to assume that he served at least 14 of the total of 28 days of custodial time represented by these two sentences.
[10] Exhibit 3, T-Documents, T2, p 30.
(k)7 May 2013 (Magistrates Court) –
(i)Breach of a community sentence order imposed on 17 May 2012 – resentenced for the original offences for which that order was imposed and fined $100;
(ii)Evading a fare (two charges);
(iii)Common assault – sentenced to two months’ imprisonment (suspended for 12 months after serving 54 days);
(iv)Failing to appear in accordance with an undertaking – sentenced to 21 days’ imprisonment (suspended for 12 months after serving 54 days);
(v)Breaching a bail condition (two charges) – sentenced to 14 days’ imprisonment (concurrent);
(vi)Failing to appear in accordance with an undertaking – sentenced to 14 days’ imprisonment (suspended for 12 months after serving 54 days);
The custodial terms particularised at the immediately preceding (iii), (iv) and (vi) were ordered to be served cumulatively. The Applicant’s 14 day sentence particularised at (v) above was to be served concurrently to these sentences. In all, the Applicant served 54 days in prison, after which the remainder of his sentence was suspended for 12 months.
(l)1 January 2014 (Magistrates Court) – breach of order imposed on 7 May 2013. The Court fully invoked the suspension periods and the Applicant served the balance of the time particularised in paragraph (k) above.
(m)10 January 2014 (Magistrates Court) – failing to appear in accordance with an undertaking – 1 month’s imprisonment to be suspended for 12 months.
(n)24 January 2014 (Magistrates Court) – breach of order imposed on 10 January 2014 – the Court invoked the suspended sentence imposed on 10 January 2014.
(o)24 January 2014 (Magistrates Court) – failing to appear in accordance with an undertaking – sentenced to 1 month’s imprisonment, cumulatively with the custodial term particularised in the immediately preceding paragraph (n).
(p)25 February 2014 (Magistrates Court) – failing to appear in accordance with an undertaking – sentenced to one month’s imprisonment (concurrent).
(q)26 February 2014 (Magistrates Court) – breach of bail condition – convicted, no penalty imposed.
(r)5 May 2014 (Magistrates Court)
(i)Trespass – fined $450;
(ii)Driving a motor vehicle while under the influence of liquor (over the high-alcohol limit) – sentenced to 12 months’ imprisonment and disqualified from driving for 20 months;
(iii)Driving while disqualified – sentenced to 9 months’ imprisonment and disqualified from driving for 2 years.
For each of the immediately preceding offences, particularised at (ii) and (iii) above, the Applicant’s disqualification from driving was for the cumulative period of those respective disqualifications. That is, he was disqualified from driving for 44 months. His prison terms were also to be served cumulatively, that is, for a total period of 21 months.
I note that this list may not include the totality of the Applicant’s offending, because, inter alia, there is no entry for 17 May 2012 involving the making of any community service order, even though the Applicant was subsequently found guilty of breaching its terms, on 7 May 2013.
On 1 May 2015, the Minister mandatorily cancelled the Applicant’s visa pursuant to

s 501(3A) of the Act.[11] On 25 May 2015, the Applicant requested revocation of the Minister’s mandatory visa cancellation.[12] On 22 July 2016, the Minster’s delegate refused to revoke the mandatory cancellation.[13] On 8 August 2016, the Applicant applied to this Tribunal for review of the refusal to revoke the mandatory cancellation.[14]
[11] See Exhibit 3, T Documents, T2, p 43.
[12] Ibid, T2, pp 75-78.
[13] Ibid, T2, pp 11-19.
[14] Ibid, T2, pp 4-5.
ISSUES
The refusal to revoke the mandatory cancellation was made on two grounds. I must consider and address both of the following issues:
(a)whether the Applicant passes the “Character Test” as defined in s 501(6) of the Act; and
(b)whether, having regard to the considerations in Direction No. 65 (“the Direction”), the discretion appearing in s 501CA(4) of the Act should be exercised to find another reason why the mandatory visa cancellation decision should be revoked.
I am satisfied that the Applicant does not pass the character test in s 501(6), and consider that the Minister’s delegate correctly exercised the discretion in s 501CA(4) of the Act to refuse to revoke the mandatory cancellation. My reasons are set out below.
ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?
It is clear to me from material filed on his behalf that the Applicant does not dispute the Respondent’s contention that he does not pass the character test. Therefore, there is no requirement to address it here at any great length.
Section 501(6) of the Act provides a number of circumstances in which someone will not pass the “Character Test”. Most relevant here is s 501(6)(a), under which a person does not pass the character test if they have a “substantial criminal record”, as defined in

s 501(7). In s 501(7)(c), a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more. The wording of that provision is clear: it relates to the sentence imposed by a Court, not the amount of time a person has actually served.
The Applicant has been sentenced to a period of at least 12 months’ imprisonment three times, on 26 August 2009 (twice), and 5 May 2014, respectively. The Applicant therefore has a substantial criminal history within the meaning of that subsection such that he does not pass the character test. I must therefore move to the next question: whether there is another reason why the discretion in s 501CA(4) of the Act, to revoke the mandatory cancellation of this visa, should be exercised.
ISSUE 2: SHOULD THE S 501CA(4) DISCRETION TO REVOKE THE MANDATORY VISA CANCELLATION BE EXERCISED?
Was the original decision to revoke correct?
Under s 501(3A) of the Act, a mandatory cancellation of a visa must occur if the Minister’s delegate (or other decision maker) is satisfied that the person holding the visa:
(a)does not pass the character test[15] on the basis that, inter alia, the person has been sentenced to a term of imprisonment for 12 months or more;[16] and[17]
(b)the person is serving a sentence of imprisonment on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory.[18]
[15] Migration Act 1958 (Cth), s 501(6)(a).
[16] Ibid, s 501(7)(c).
[17] Ibid, s 501(3A)(a).
[18] Ibid, s 501(3A)(b).
Cancellation of the visa occurred on 1 May 2015, when the Applicant was serving a full-time sentence of imprisonment in a Queensland correctional facility. As both elements are satisfied, I therefore find that the original decision of the Minister to cancel this visa was a correct one pursuant to s 501(3A) of the Act.
Can the mandatory cancellation be revoked?
In the event of a mandatory visa cancellation, the Minister must, pursuant to s 501CA of the Act, give the affected person:
(a)written notice setting out the original decision;[19] and
(b)particulars of the relevant information;[20] and
(c)invite the affected person to make representations to the Minister about revocation of the original decision.[21]
[19] Ibid, s 501CA(3)(a)(i).
[20] Ibid, s 501CA(3)(a)(ii).
[21] Ibid, s 501(CA)(3)(b).

For the purposes of this decision, I also consider there has been due compliance with the provisions of s 501CA(3)(a) and (b).
Section 501CA(4) gives the Minister power to revoke the mandatory cancellation decision if:
(a)the affected person makes representations for review of that decision;[22] and
(b)the Minister is satisfied that:
(i)the person passes the character test (as defined in s 501);[23] or
(ii)there is another reason why the original decision to cancel the visa should be revoked.[24]
[22] Ibid, s 501CA(4)(a).
[23] Ibid, s 501CA(4)(b)(i).
[24] Ibid, s 501CA(4)(b)(ii).
I find that the Applicant has made appropriate and lawful representations to the Minister. I have already found that this Applicant does not meet the requirements of the character test.
The only remaining possibility is for the Applicant to satisfy the Tribunal it should exercise its discretion (pursuant to s 501CA(4) of the Act) to revoke the mandatory cancellation of his visa.
The legislative framework
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with the Direction. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that:
…a decision-maker… must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[25]
[25] Direction No 65, paragraph 7(1)(b).
The considerations relevant to cancelling a non-citizen’s visa appear in Part A of the Direction. Paragraph 13.2 of the Direction provides the three primary considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case. The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are:
(a)International non-refoulment obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The Direction also sets out at paragraph 6.3 a number of principles that should be taken into account when assessing the above considerations. Relevantly, some of those principles include:
1… Being able to come into 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.
2The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere.
3…
4In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable…
5Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time…
6Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa…
7The length of time a non-citizen has been making a positive contribution to the Australian community…
Primary Consideration A: Protection of the Australian Community from Criminal or Other Serious Conduct.
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 13.1.1 offers guidance as to how to ascertain the nature and the seriousness of the Applicant’s conduct to date. Relevantly, it includes:
(a)…
(b)…
(c)The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeated offending;
(f)Whether the non-citizen has reoffended since being formally warned… about the consequences of further offending in terms of the non-citizen’s migration status…
(g)Whether the non-citizen has reoffended 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 immigration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);…
On any reasonable and objective view, the totality of the Applicant’s criminal and traffic history is serious. The sheer consistency and repetitiveness of his failure to realise that excessive consumption of alcohol and driving are two things that should never be mixed is remarkable. What is fortuitous is the fact that he has so far avoided any serious collision, either with another motorist or a pedestrian in the course of his driving history.
There has been something in the order of 26 separate court appearances deriving from the commission of something in the order of 43 criminal offences. His offending is not exclusively limited to high-range drink driving, though that is a notable element of it. It also includes the infliction of physical harm upon others, and a direct challenge to lawful authority (in a physical sense), comprising an assault or obstruction of a police officer.
A further significant feature of the Applicant’s criminal conduct (and no less remarkable than the others), is his persistent failure to abide by terms or obligations imposed upon him by lawful authority, as those terms or obligations relate to his conduct both towards lawful authority and, more generally, the community. It is verging on the absurd to see such a large number of either (a) failures to appear before a court and/or (b) failures to comply with good behaviour bonds or other personal obligations in his criminal history. There was no suggestion, at the hearing or in the material, that the Applicant did not understand the terms of the obligations that had been imposed on him.
His criminal history has – in terms of his sentencing – a theme of virtual exasperation being expressed by the sentencing judicial officers, where they had before them the consistency and regularity of the Applicant’s prior offending and felt compelled to impose custodial terms. As is well established, the imposition of a custodial term is regarded as a measure of last resort in a court’s sentencing discretion. There is no other conclusion than to think the sentencing Courts viewed the Applicant’s conduct as serious, and, accordingly, imposed respective custodial terms, quite often to be served on a cumulative basis.
It is contended on behalf of the Applicant that he does have “a significant history of alcohol abuse”.[26] This abuse of alcohol is apparently attributable to a traumatic childhood, associating with the wrong crowds, and feelings of hurt and anger. A further reason for his abuse of alcohol is that he has not had family support while in Australia, resulting in him having feelings of social isolation. The primary evidence in support of this contention comprises the Applicant’s own statement, appearing in the T-Documents.[27] Although I do note that there is a medical report supporting the Applicant’s alcoholism,[28] it does not go to the question of treatment – all forms of treatment other than ‘alcohol abstinence’ are listed as being ‘planned’. There is no evidence before me that the Applicant in fact underwent any serious treatment for his alcoholism.
[26] Exhibit 1, Applicant’s SFIC, p 3.
[27] Exhibit 3, T-Documents, T2, p 78.
[28] Ibid, T2, p 79.
In terms of mitigating factors, at the hearing, the Applicant contended that even though the majority, if not all, of his offending related to him being intoxicated or otherwise affected by liquor, the Tribunal should have regard to the following mitigating factors:
(a)The offending was not pre-meditated;
(b)There would have been no motivation to reoffend, but for his abuse of alcohol;
(c)The Applicant’s alcoholism has been medically diagnosed.[29]
[29] Exhibit 1, Applicant’s SFIC, p 3.
I have grave difficulty in allocating any credence to these asserted mitigating factors. Each factor relies on the Applicant’s alcoholism as an excuse for his behaviour. I disagree that one’s predisposition to intoxication is somehow a reason for a decision-maker to find that an offender’s behaviour should be ignored. Intoxication is not an excuse for one’s behaviour, no matter what. It is simply insufficient for the Applicant to rely on his intoxication to suggest that his offending was not particularly significant, especially when the most serious of the Applicant’s offences were alcohol-related. This is particularly true when there is next to no evidence before me that the Applicant has sought treatment for alcohol abuse.
The Applicant’s consistent lack of judgement when consuming alcohol, and then purporting to operate a motor vehicle, is serious and alarming. His drink driving history is appalling. On two occasions, he has been apprehended with a blood alcohol content of a medium level. On four occasions, with a high level. On two of those four high level occasions, with an extraordinary blood alcohol level of almost six times the legal limit.
At the risk of repeating myself, the sentencing Courts have seen fit to impose combined custodial terms upon him that can be measured in a period of years, not just one isolated sentence of 12 months. One sentencing judicial officer made himself very clear:
For the drink driving and the disqualified driving, the only outcome is a term of imprisonment. You have a serious problem with alcohol. You have been given the opportunity of probation some time ago. You failed that. I also see on your history, and I omitted to raise this with [lawyer], but you’ve also breached a community service order. You are with levels of alcohol at .285 a danger to yourself and a significant danger to other road users. I’ve reached the conclusion, as I say, that a term of imprisonment, given your history and given those facts and given that reading, that a term of imprisonment is the only outcome.[30]
[30] Exhibit 3, T-Documents T6, p 56.
The Respondent’s contention is therefore well made: the cumulative effect of the Applicant’s drink driving offences plainly demonstrates his blatant disregard for the road rules and the general safety and welfare of members of the Australian community. The Tribunal, likewise, takes a stringent attitude to drink driving offences in considering whether to exercise the relevant discretion:
…Driving while under the influence is indeed a serious issue and one that few in this country should be expected to tolerate. The risks associated with it are serious and sometimes disastrous, resulting in a loss of life or physical injury.[31]
[31] NSWQ and Minister for Immigration and Border Protection [2016] AATA 373, [58] (Kendall DP).
There is also a noticeable increase in the seriousness of the Applicant’s offending, graduating to physical interference with the personal rights of others. He is a man of 35 years, and, without question, is sufficiently mature to understand the nature and effect of what he is doing. He must surely be aware of the number of his offences and the frequency of his appearances before the courts. Likewise, he must be surely able to comprehend both the seriousness of a relatively lengthy custodial term, and that such terms are usually imposed by the courts in this country as a measure of last resort, where an offender simply fails to learn their lesson.
I find that the Applicant’s conduct to date has been extremely serious. I therefore have little difficulty in agreeing with the Minister’s delegate in finding that the totality and repetitive nature of this Applicant’s offending can be viewed seriously in terms of its overall impact on the community.
Consequently, this factor weighs heavily in favour of exercising the discretion to cancel his visa.
(b) The Risk to the Australian Community Should the Applicant Continue to Commit further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(2) of the Direction provides two factors the Tribunal must have regard to in determining the risk to the Australian community of the Applicant re-offending or continuing to engage in other serious conduct. They are:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The Nature of Potential Future Harm
As a general principle, the Direction also provides – logically to my mind – that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
This Applicant is obviously a repeat offender with a serious criminal history, which I have detailed at length above. I am of the view that, given his largely unresolved and untreated alcoholism, were he to re-offend in a similar manner – be it behind the wheel of a motor vehicle or in terms of direct physical interference with another person – he would pose a grave risk to individuals in the Australian community.
I consider the Applicant is a risk to the Australian community because he has clearly failed to realise the risk that his offending has caused to himself. I am concerned that if the Applicant cannot realise that his offending has had, and will have, serious consequences for himself, how then can a decision-maker feel comfortable with accepting a contention that he is of minimal risk to the remainder of the community?
Though I recognise the Applicant contends he poses little or no future risk of harm, this contention is unsubstantiated. Taking into consideration the nature of his previous offending, I consider that the potential future harm he may cause to members of the Australian community is great.
The Likelihood of Re-offending or Continuing to Engage in Other Serious Conduct
The Applicant contends that he is not likely to continue to offend or otherwise engage in serious conduct because he has changed. Simply, I have not been presented with any evidence to show this is the case. Indeed, the Applicant tried to shift the blame for his offending onto his alcoholism. Even if that were the case, the fact this is untreated indicates that there is a high likelihood that he will reoffend.
In consideration of the above factors, I determine that primary consideration A – protection of the Australian community – weighs heavily in favour of not revoking the mandatory visa cancellation decision.
Primary Consideration B: The Best Interests of Minor Children in Australia Potentially Affected by the Decision
The Tribunal was told at the hearing that the Applicant has a three year old daughter from a previous relationship. The question that arises, pursuant to this consideration, is whether non-revocation of the visa is or is not in the best interests of the child.
The Applicant concedes he ‘does not have a close relationship with’ his biological daughter.[32] I note the concession of the Respondent that, as a general proposition, it would usually be in a child’s best interests that their father play an active role in their lives.
[32] Exhibit 1, Applicant’s SFIC, p 4.
However, given the negligible contact the Applicant has with his daughter, I have misgivings about allocating any great measure of weight to this primary consideration. I therefore agree with the Respondent’s contention that the interests of the Applicant’s biological child are a neutral consideration for the purposes of determining whether to revoke the cancellation of the Applicant’s visa.
Primary Consideration C: The Expectations of the Australian Community
I turn now to the final primary consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community, and whether the Australian community would expect that someone with his character concerns and history of offending should continue to hold a visa. I must also have regard to the Government’s views in this respect.
I have significant doubts as to whether the Australian community would expect that someone with an extensive criminal record of the nature and type of the Applicant’s would be granted or allowed to keep his visa.
I refer to my above comments about the seriousness with which the Australian community treats drink drivers.
I have little or no doubt the Australian community would not expect that an individual who has been caught drink driving with two medium level blood alcohol level readings (i.e. at least twice the legal limit), four high level blood alcohol level readings (i.e. at least three times over the legal limit) and two of those high level readings involving the driving of a vehicle with blood alcohol readings almost six times over the legal limit, should be allowed to remain in this country.
Similarly, I consider the Australian community would have little or no tolerance or expectation that an individual with the repetitive history of offending of the Applicant (i.e. in addition to his driving offences), coupled with his blatant disregard for Australian lawful authority, should be allowed to remain in this country.
Having regard to all of these circumstances, I find that this consideration weighs heavily in favour of not revoking the mandatory visa cancellation.
Other Considerations
I turn now to the other considerations listed at paragraph 14 of the Direction.[33] They are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
[33] Direction No 65, paragraph 10(1).
I note that sub-paragraphs (c) and (d) are not relevant and have not been contended by the Applicant. I will consider the remaining sub-paragraphs in turn.
International non-refoulement obligations
The Applicant contends he is likely to be the subject of international non-refoulement obligations owed by Australia, should his visa not be reinstated. The Respondent drew my attention to paragraph 14.1(4) of the Direction. This paragraph is to the effect that, if the Applicant is able to make a valid application for another kind of visa should his current visa be revoked, then the non-refoulement obligations are not to be considered in determining whether to revoke his visa.
The Applicant currently possesses a Class XB Subclass Global Special Humanitarian Visa. Section 501E(2) of the Act provides that someone whose visa has been cancelled under s 501 of the Act may still make a claim for a protection visa. These two visas are clearly different. Consequently, he will be able to make a valid claim for ‘a visa’ should his current one be revoked. I therefore consider that paragraph 14.1(4) of the Direction applies, and I do not need to further consider any non-refoulement obligations Australia may owe to him.

I respectfully note with approval that the reasoning for this provision has been previously explained by respective Deputy Presidents of the Tribunal in NSWQ and Minister for Immigration and Border Protection [2016] AATA 373, and MKKR and Minister for Immigration and Border Protection [2016] AATA 458. I further respectfully note with approval the recent decision of the Full Federal Court in this regard: Minister for Immigration and Border Protection v Le [2016] FCAFC 120.
Strength, nature and duration of ties
The Applicant concedes that most of his immediate family live in the United States. On the other hand, he contends that ‘considerable weight’ should be given to his ties to Australia. One has misgivings about this contention in circumstances where there is virtually no relationship between him and his biological daughter. Rather, the Applicant says this is a consideration due considerable weight because he has been in Australia for something in the order of twelve of his 35 years, and because he sees his future as being here.
What this contention fails to take into account is the nature and extent of his serious criminal history for the twelve years he has been in Australia, involving, as it does, at least two custodial terms of 12 months or more resulting from the commission of nearly 50 offences.
There is a dearth of evidence before the Tribunal about the Applicant’s employment history or employability while he has been here. I am not convinced of his future employment prospects in this country, nor do I think that if allowed to remain here, he would make any meaningful contribution to the Australian community. He does not appear to have done so thus far.
His offending commenced less than 18 months after arriving in Australia. There is little evidence his behaviour has been reformed to the extent that a decision-maker can be convinced he has now developed a respect for Australian lawful authority and, perhaps more significantly, that he has realised the nature and type of his offending has been such as to place other members of the Australian community directly in the face of danger. In these circumstances, in accordance with paragraph 14.2(1) of the Direction, I allocate little weight to this consideration. In any event, this consideration is heavily outweighed by primary considerations A and C.
Extent of impediments if removed
It is contended on behalf of the Applicant that if removed from Australia, he would suffer ‘extreme duress’ because:
(a)He has no support network overseas;
(b)All of his immediate family reside in the United States and he has no obvious or apparent right of abode there;
(c)He would face hardship because his lack of schooling in any other country places him at a significant disadvantage to other members of any community in which he may find himself;
(d)He would face death, homelessness or destitution in his country of origin; and
(e)Removal to a hostile war zone may also offend the provisions of the International Covenant on Civil and Political Rights, and Convention Against Torture.[34]
[34] Exhibit 1, Applicant’s SFIC, pp 4-5.
The Respondent, meanwhile, contends that the Applicant’s numerous roles involving manual labour indicate he will not have difficulty in securing similar types of employment in another jurisdiction. Indeed, I consider that this factor, along with factor (b) above, present exactly the same level of impediment to the Applicant’s life in Australia as they would overseas.
I do not recall any evidence about the Applicant experiencing any language barrier if returned to his country of origin. I note the helpful concession by the Respondent that the Applicant will likely suffer impediments if removed to his country of origin. This concession derives from a recognition that: (a) the social, medical, and/or economic support available in his country of origin is not comparable to that of Australia; and (b) the Applicant does not have family support available to him in his country of origin.
I accept that this other consideration weighs in favour of revocation of the cancellation of the Applicant’s visa. Be that as it may, I consider this other consideration is heavily outweighed by primary considerations A and B.
CONCLUSION
Having regard to the totality of my foregoing comments, and the applicant’s offending, I find as follows:
(a)Primary consideration A (protection of the Australian community from criminal or other serious conduct) weighs heavily in favour of non-revocation of the cancellation of this visa;
(b)Primary consideration B (best interests of minor children in Australia) is weighted neutrally as the Applicant has a child in Australia but no contact with her;
(c)Primary consideration C (expectations of the Australian community) weighs heavily in favour of non-revocation of the cancellation of this visa;
(d)Other consideration (a) (non-refoulement obligations) is not yet applicable in the circumstances of this application;
(e)Other consideration (b) (strength, nature and duration of ties) weighs very slightly in favour of revoking the cancellation of this visa; and
(f)Other consideration (e) (extent of impediments if removed) weighs in favour of non-revocation of the cancellation of this visa.[35]
[35] As per above, other considerations (c) and (d), impact on Australian business interests, and impact on victims, respectively, are not relevant to this application.
Weighing these factors against one another, it is clear that primary considerations A and C outweigh any of the other considerations, and favour non-revocation of the cancellation of this visa.
DECISION
76.For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis

..................[sgd]............................
Associate
Dated: 8 June 2017

Date of hearing: 25 January 2017

Solicitors for the Applicant: Martin Udall & Associates

Solicitors for the Respondent: L. Gell, Clayton Utz

Date of hearing:	25 January 2017
Solicitors for the Applicant:	Martin Udall & Associates
Solicitors for the Respondent:	L. Gell, Clayton Utz