QPDT and Minister for Immigration and Multicultural Affairs (Migration) - [2024] ARTA 272

QPDT and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 272 (23 December 2024)
Applicant/s:  QPDT
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/8078

Tribunal:General Member J Cipolla
Place:Sydney
Date:23 December 2024

Decision:The Tribunal sets aside the decision under review and in substitution decides that the cancellation of the Applicant’s visa is revoked.

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General Member J Cipolla
CATCHWORDS
MIGRATION – cancellation of Applicant’s Class BS Subclass 801 Partner visa – substantial criminal record – family violence – decision set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth) s 501CA (4)
CASES
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
JYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] AATA 3617
FYBR v Minister for Home Affairs [2019] FCAFC 185
Irving V Minister (1996) FCA 663
SECONDARY MATERIALS
Direction No. 110, Visa cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.2(2), 7(2), 8.1.1(1), 8.1.1(1)(a)-(i), 8.1.1(1)(a)(ii), 8.1.1(a)(iii), 8.1.1(1)(b)(i), 8.1.2(1)-(2), 8.2(1), 8.2(3), 8.2(3)(a)-(d), 8.3(2), 8.3(2)(a)-(b), 8.4(1)-(3), 8.4(4)(a)-(h), 8.5(1)-(4), 9(1)
STATEMENT OF REASONS
BACKGROUND AND OFFENDING HISTORY

The Applicant has held a number of alias identities.
According to the delegate’s cancellation decision record the Applicant was born on 19 February 1976 or 22 June 1976 in Country A.
The Applicant left school in Country A when he was 14 years old.
The Applicant left Country A when he was 19 years old in what the Applicant has described as both dramatic and difficult circumstances.
The Applicant has claimed that his brother R was shot dead in Country A over a family vendetta.
The Applicant, when he fled Country A, travelled to Italy as a refugee with very limited financial means ($8.00). The Applicant lived on the streets in Italy and obtained the odd, poorly paid job.
Whilst the Applicant was in Italy, he attempted to find a way to leave Italy.
The Applicant initially (in 1997) claimed that he managed to travel to Australia when some Italians that he approached advised him that they would be able to assist him getting to Australia. In return for their support in fleeing the country, the Applicant had claimed he was required to do something for them in return. This involved travelling to Australia with an accomplice and smuggling drugs into Australia. The Applicant has claimed he was not cognisant of the fact that drugs, namely heroin, had been secreted in the soles of his sandshoes by the Italian criminals.
On 9 January 1997, when the Applicant and his accomplice arrived in Australia at Sydney International Airport, they were both intercepted by customs officers and at this time a grey and a pink substance (heroin) was found to be in their possession. The Applicant at the time of this offending was found to be in possession of an Australian passport issued to Person X by the Australian passport office in Adelaide. The passport did not belong to the Applicant.
The Applicant ended up pleading on 9 May 1997 to knowingly importing a prohibited substance.
The Tribunal has before it the sentencing documents from the NSW District Court dated 9 October 1997, at which time Judge Viney sentenced the Applicant to six years imprisonment with a non-parole period of three years, a sentence related to his drug importation and passport offences, a sentence which was to commence from 9 January 1997.
Judge Viney in his sentencing comments noted that, with respect to the Applicant’s story about how he travelled to Australia, “the whole story had elements of fantasy about it”. Judge Viney found it fanciful that the Italian drug smugglers were able to infiltrate the Applicant’s shoes whilst he was in the back of a car and that the next day the Applicant wore the very same shoes to the airport to depart Italy claiming to be oblivious to the drugs having been secreted in them.
In a statement to the Department in April 2024, in response to a letter with respect to the prospective cancellation of his visa on character grounds, the Applicant confirmed that “the presiding judge was correct - the story was all fantasy, made up when we were both in prison in Australia. None of the story about the drugs and the shoes, or my involvement in the secreting of the drugs in shoes was true. The Italians did not exist”.
The Applicant goes on to explain in his statement that at the time he came to Australia he was 19 years old, and he was in fear of his life. The Applicant stated that MK, who was at the time married to his sister in Australia, organised everything to facilitate him travelling to Australia including the tickets and passport. The Applicant claimed that when he met MK in Rome, MK had drugs on him, and he wanted the Applicant to transport them to Australia along with MK. In addition to this, the Applicant claimed that if he was caught, MK wanted him to say that he was responsible for the drug importation. The Applicant claimed that he acquiesced with MK’s request because he was desperate to flee both A and Italy as he was fleeing a desperate situation as a refugee, and allowed himself to be used by MK in order to get to safety.
The evidence before the Tribunal indicates that the Applicant lodged a protection visa application on 27 November 1997. On 19 March 1998 the Department refused his application for protection, finding that he was not owed protection obligations. The Applicant sought merits review with the then Refugee Review Tribunal and on 11 January 2000 the Refugee Review Tribunal found that the Applicant had a well-founded fear of persecution on the basis of a membership of a particular social group, and the matter was remitted back to the Department on this basis. On 9 May 2000 the Applicant was granted a Subclass 866 Protection visa.
The evidence before the Tribunal indicates that after the Applicants first term of imprisonment in 1997, and his subsequent grant of a protection visa in 2000, that the Applicant’s offending history continued.
The evidence indicates that between 2003 and 2010, the Applicant was convicted of driving offences which included an offence of driving at a dangerous speed, along with a range of drug offences with respect to the production of cannabis.
With respect to the Applicant’s driving offences from 2003, they include drive at a dangerous speed, disobey licence conditions, drive an unregistered motor vehicle on a road, drive under disqualification or suspension, drive a motor vehicle with a defaced numberplate, drive motor vehicle without a numberplate properly attached, drive a motor vehicle with excess blood alcohol, drive under disqualification or suspension, failed or refused to answer a question with respect to identity of the driver/owner of the motor vehicle.
With respect to the Applicant’s drug offence history, the offences included the production of cannabis, cultivating a controlled plant, cultivating cannabis plant artificially, enhanced cultivation, along with possession of cannabis, cannabis resin or cannabis oil.
The evidence before the Tribunal indicates that on 20 March 2023, the Applicant’s visa was cancelled under s.501(3A) on the basis that a Departmental delegate was satisfied that the Applicant did not pass the character test because of the operation of s.501(6)(a) of the Act (substantial criminal record), and on the basis of s.501(7)(c) because he was serving a sentence of imprisonment of 12 months or more on a full-time basis in South Australia for an offence against the law of the Commonwealth, State or a Territory.
The Tribunal has had regard to the sentencing comments of Judge Davison in the District Court of South Australia dated 20 December 2022. With respect to the offending Judge Davison notes the following:
about 12:20 PM you came onto the property and up to the front door. You had a handgun in your right hand. Neither of the occupants would open the front door to you. The female occupant heard you yell “Give me back my fucking car”. You were not known to either of the occupants. The CCTV shows your remaining in the front yard for approximately a minute and you appeared to be speaking throughout that time. On two occasions you waived the firearm towards the house, on the first occasion, to just below shoulder height, and on the second occasion, level with your shoulder height. You left on foot and the female occupant called the police.
… When you were initially spoken to by the police, you told them that you did not drive on the relevant road, then you said you did drive along it, then you told them that you were at the address to work as a painter. You were arrested and then exercised your right to silence.
… The firearm was not registered, nor were you a firearms licence holder.
The sentencing comments indicate that the Applicant believed that his offending occurred as a result of the consumption of methamphetamines and alcohol on the day of the offence and that the Applicant had not slept for several days at the time of the offending.
Judge Davison noted that she considered that the type of offending, namely being in the possession of a loaded firearm, was at the higher end of the scale for offences of this type. In this respect Judge Davison noted that:
not only did you have possession of this firearm, but it was used by you in an attempt to intimidate and threaten members of the public in broad daylight. You were also intoxicated to a point where you now claim to be unable to recall the details of it. It hardly needs to be said, that for a person in that condition to have possession of a loaded firearm in a suburban area and using it as you were, constitutes a very serious offence.
… In 1997 you were convicted of the offence of knowingly importing heroin into Australia and having a false passport. You were convicted and sentenced to a term of imprisonment of six years with a non-parole period of three years. In 2006 you were convicted of producing cannabis and damaging property and given a suspended term of imprisonment, that was later appealed and there was a bond put in place for you to be of good behaviour for one year and six months. You were also ordered to pay compensation of $3500 on that occasion. In 2010 you were convicted of possessing an article to commit an offence, and in the same year, you were convicted of cultivating a controlled plant and given another term of imprisonment that was suspended.
In 2014 you are convicted of cultivating cannabis hydroponically and fined, and most recently in 2015 you were given a further suspended sentence for driving whilst disqualified.
As a consequence of the offending and conviction, Judge Davison imposed a full-time custodial sentence.
The sentencing remarks dated 20 December 2022 indicate that the Applicant was convicted of aggravated possession of a Class H firearm without a licence, for which he was sentenced to a term of imprisonment of three years, four months and five days with a non-parole period of 2 years.
On 23 March 2023, the Applicant’s Subclass 866 Protection visa was cancelled under s.501(3A) of the Migration Act 1958 (Cth) (‘the Migration Act’). The Applicant made submissions to the Department with respect to reasons that the cancellation of his visa should be revoked.
On 8 October 2024, the delegate decided not to revoke the cancellation decision. Recourse to the delegate’s decision record indicates that reference was made to the Applicant’s offending history in Australia since his arrival in Australia in 1997 and the fact the Applicant had been the subject of two significant periods of imprisonment. The delegate noted the Applicant’s long history of drug abuse which included methamphetamine abuse and that his offending in October 2021 was deemed by the trial judge to be at the higher end of the scale of seriousness. The trial judge noted that the victim of the offending, and indeed the community at large, was at significant risk as the Applicant was brandishing a loaded firearm in broad daylight whilst affected by both alcohol and methamphetamines.
The delegate determined that the Applicant and his offending history posed a serious risk to the Australian community.
With respect to the Applicant being the subject of a protection finding made by the then Refugee Review Tribunal in January 2000, and hence Australia owing the Applicant protection obligations, the delegate noted the following:
“…on 7 June 2023, the International Obligations and Complex Cases section advised that subsection 36(1C) of the Act did not exist at the time of the visa grant. The delegate found that Mr M did not pass the character test but exercised their discretion to not refuse the protection visa application. This means that subsection 197C(5)(a) of the Act will prevent Mr M from being involuntarily removed to A unless a decision is made under s197D of the Act that a protection finding would no longer be made.”
Reference was then made to Attachment F which is a protection finding for the purposes of section 197C of the Migration Act. Recourse to attachment F indicates the following:
“Subsection 36(1C) of the Act did not exist at the time the delegate granted Mr M’s PV. Although consideration was given as to whether to assess the case under Article 1F of the Refugee Convention, no express findings were made to state that he was excluded from being a refugee. Instead, the delegate made a decision under subsection 501(1) of the Act. The delegate found Mr M did not pass the character test but exercised their discretion to not refuse the PV application on the basis of his personal circumstances.
In the course of considering that application, therefore, the delegate made a protection finding within the meaning of paragraph 197C(5)(a) of the Act.
This means that subsection 197C(3) of the Act will prevent Mr M from being involuntarily removed to A, unless a decision is made under section 197D that a protection finding would no longer be made.”
On 17 July 2023, the Applicant provided a response to a letter he had received from the National Character Consideration Centre (NCCC). With respect to the protection findings that had been made with respect him and he stated the following:
as accepted by the Department in the letter, I have been found to be in need of protection as a genuine refugee and therefore the amendment applies to me in section 198 of the Migration Act does not require or authorise my removal to any country for which a ‘protection finding was made’ in relation to me-namely A. I stay clearly now that I am still in need of the protection of Australia as I have are well-founded fear of persecution-indeed death-if I return to A. My fear of persecution and death has been the reason I have hidden all these long years in Australia under a false identity and of largely avoided contact with other A’s for fear of discovery by those who have vowed to harm me. I note that A’s are prepared to travel long distances, and even after many years, if they are hunting someone down for death. I believe that the Department of Immigration is aware of my precarious situation, but, if not, I am hopeful that I will be given the opportunity to explain the reality of the serious situation I face, if I’m forced to leave Australia. I have been living under a false identity (AM) ever since I arrived in Australia. About 10-15 years ago there was some media articles overseas that I was going to be deported to a and I believe that the Department would have been aware of those reports, but I do not know. I believe there will be serious ramifications if anyone here finds out who I really am. I come from a part of a not many A’s in Australia come from, so I am not recognised under my false name. This is not guaranteed of course-I can always be discovered if I am not careful.”
APPLICANTS STATEMENT OF FACTS ISSUES AND CONTENTIONS
The Applicant’s representative provided a Statement of Facts, Issues and Contentions (SFIC) to the Tribunal dated 22 November 2024, which notes that the Applicant concedes that he does not pass the character test under s.501(2) as defined by s.501(6) and s.501(7) of the Migration Act.
The Applicant concedes that he has a substantial criminal record and has been sentenced to a term of imprisonment of 12 months or more. The Applicant “accepts that the crimes for which he was convicted, are extremely serious and involve violence. Those crimes involve: drug offences-including cultivation and possession of cannabis, possess prescribed equipment, knowingly concerned in the importation of a traffic more quantity of prohibited import (heroin); driving under the influence of alcohol; dangerous driving; driving without numberplates properly attached; damaging property; several counts of hindering police; possess a falsified Australian passport; convictions for traffic offences-including drive under disqualification or suspension; possess cat C, D, H firearm without licence; and acquire, own or possess ammunition without licence or permit District Court of SA 20/12/2022.”
The submission notes that the respective issue before the Tribunal is whether there is another reason why the decision to cancel the Applicant’s permanent visa should be revoked.
The Applicant contends that the delegate’s decision is wrong and that whilst several of the considerations under Direction 110 weighed against revocation, that a number of considerations weighed in favour of revocation, and that the Departmental delegate gave the likelihood of re-offending significant weight in outweighing other positive factors. The Applicant states that “the support letters in my prison reports all indicate the strong belief from the writers who know me well that I will not/am unlikely to re-offend. I also state that there is no chance that I will re-offend. I am very aware now of the trigger that sent me into a downwards spiral and I am now aware that I have serious mental health issues that need addressing in order to assist me retain equilibrium no matter what.”
The Applicant contends that the delegate did not give sufficient consideration to his statutory declaration, and submissions made by close family members, friends and colleagues.
The submission notes that the Applicant is not proud of the events that are described in the sentencing remarks of Judge Davison in the Adelaide District Court on 20 December 2022. The submission notes that the Applicant is in fact “ashamed, embarrassed, and, indeed, horrified by what is detailed in the document. He contends that the sentencing remarks of her Honour have, however, been helpful in getting him to face the reality of his criminality and the effect he has had, adversely on others, damaging and harming them in ways he could not imagine before. He now realises no crime is without victims. Since his abrupt and unexpected release from detention, he has found employment full-time; re-engaged with his family; and disassociated himself from any previous friends and acquaintances outside of his employment. He has sought assistance, since his release from immigration detention, for his mental health from his doctor and from a qualified psychologist.”
The submission notes that the Applicant is willingly addressing his drug and alcohol issues along with depression and anxiety. The Applicant contends that his life has turned a corner and he is in the process of rehabilitation and rebuilding his life with his family. The Applicant has expressed to his family and others in the community that he cannot change the past but can take positive steps towards the future. The submission notes that the Applicant is directly reliant on witness statements provided in support of the review application.
The submission notes that the Applicant strongly contends that he is not a danger to the Australian community.
RESPONDENTS STATEMENT OF FACTS ISSUES AND CONTENTIONS

The Respondent’s representative provided a submission to the Tribunal dated 5 December 2024 which the Tribunal has duly considered. The submission makes reference to the relevant law with respect to the cancellation of the Applicant’s Protection visa on character grounds pursuant to s.501(3A) of the Migration Act and makes reference to the relevant considerations with respect to Ministerial Direction 110.
The submission makes extensive reference to the Applicant’s offending history since his arrival in Australia in January 1997 through to his conviction with respect to his 2021 offending (possession of a class H firearm without licence, possessing ammunition and refusing to answer police questions) for which the Applicant was convicted on 20 December 2022 to a term of imprisonment of three years, four months and five days with a non-parole period of two years.
The submission notes that the Applicant concedes that he fails the character test due to the fact that he has a substantial criminal record as defined by s.501(7) of the Act.
The submission notes that the role of the Tribunal is to consider whether there is “another reason” why the cancellation decision should be revoked and that this “task involves an assessment of the propriety of a revocation decision, balancing factors both in favour and against revocation”.
The submission notes that the Tribunal must have regard to Direction 110-visa refusal and cancellation under Section 501 and revocation of a mandatory cancellation of a visa under section 501CA made under s.499 of the Act.
With respect to protection of the Australian community, the submission notes that the Tribunal needed to keep in mind that the safety of the Australian community is the highest priority of the Australian government and the decision-makers needed to give consideration to the nature and seriousness of the Applicant’s conduct and the risk to the Australian community should the Applicant re-offend or engage another serious conduct.
The submission notes that the Applicant has been convicted of 17 offences and has had for terms of imprisonment resulting in him being incarcerated on two occasions over 27 years. The submission notes that the Applicant’s most serious offending occurred at the time of his arrival in Australia in January 1997. The submission notes that in the intervening 20-year period there were less serious convictions, however there was an increase in seriousness over that period culminating in the 2021 offending that led to a custodial sentence imposed in December 2022. Reference is made to the sentencing comments of Judge Davison with respect to the 2021 offending.
The submission makes reference to the Applicant’s history of drug offences that commenced in 1997. The submission makes reference to the Applicant’s traffic offending noting that the Applicant had been convicted of seven traffic -related offences, one of which involved the Applicant driving with an excessive blood alcohol concentration over the legal limit. The submission notes that “the Applicant’s traffic offences demonstrated disregard for the law and for safe driving laws designed for the protection of the Australian community. It shows a propensity to put the lives of others in danger”.
The submission notes that considered as a whole the nature and seriousness of the Applicant’s offending weight significantly against revocation.
With respect to an assessment of whether the Applicant represents an unacceptable risk of harm to members of the Australian community, the submission makes reference to the Applicant’s driving offences, drug trafficking offences and weapon offences which all have the potential to cause harm to the Australian community. The submission notes that as of 20 December 2022, despite the Applicant’s long-standing drug addictions, that he had not engaged in any drug or alcohol treatment programs. The submission notes that there was evidence adduced that the Applicant was possibly suffering with post-traumatic stress disorder however there was no information to indicate that the Applicant had engaged in any therapies to treat post-traumatic stress disorder.
The submission posits that the Tribunal cannot be satisfied that the Applicant is rehabilitated from his past drug and alcohol use, and that he will not commit further offences in the event that he is placed under stress. The submission posits that with respect to the assessment of risk, that the Tribunal needs to have regard to the Applicant’s criminal history and the fact that his previous criminal convictions did not deter him from going onto engage in further criminal conduct.
The submission notes that the Applicant was released into the community in October 2024, subject to a bridging R visa and that two months is an insufficient time to assess whether or not the Applicant is a risk of re-offending. The minister submits that with respect to the protection of the Australian community, that substantial weight should be given in favour of not revoking the visa cancellation.
With respect to the strength, nature and duration of ties to Australia for submission notes that the Applicant had been in Australia for an extended period of time since 1997. Of 27 years and that during that period the Applicant had developed substantial ties to the community. The submission notes that the Applicant has a partner from 2000-2001 and that they have two adult children who are Australian citizens and that the Minister accepts that the impact of a cancellation decision weigh heavily on his partner and their two children, particularly his daughter because of her fragile mental health. Reference is made to a number of supporting statements provided by family members, friends and colleagues on behalf of the Applicant. The submission notes that the Minister accepts that this consideration weighs somewhat in the Applicant’s favour.
With respect to the best interests of minor children, the submission notes that the Applicant does not have any minor children of his own but has two nephews and three nieces with whom he is close. The Minister considers that this consideration should be given neutral weight.
With respect to expectations of the Australian community the submission states that taking into account community expectations that non-citizens who commit acts that cause physical harm to the Australian community is a factor that should be assigned significant weight against revocation of the Applicant’s visa.
With respect to the legal consequences of a decision to cancel the Applicant’s visa the submission notes that:
“the Applicant is the subject of a protection finding for the purposes of s. 197C of the act. Indirection 110, under 9.1, decision-makers are required to be mindful that where a non-citizen is covered by protection finding, the effect of ss 189 and 197C(3) of the act is that the non-citizen cannot be removed to a country in respect of which the protection finding has been made, and they must remain in immigration detention until they are granted a visa or they can be removed to another country”.
Reference is made to the High Court decision in NZYQ which has the effect that, where there is no real prospect that the non-citizen will be removed in the reasonably foreseeable future, the non-citizen must be released from immigration detention.[1]
[1] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 at [44]-[49].
The submission notes that the Minister contends that s.197C(3) of the act is engaged with respect to the Applicant because of the fact that he made a valid application for a protection visa that has been finally determined and that in the course of considering the application, a protection finding within the meaning of S.197C(5)(a) was made with respect to country A.
The submission notes that because of the application of this legislative provision the removal of the Applicant to country A is not required or authorised. The Minister acknowledges that there isn’t a real prospect that it will be practicable to remove the Applicant from Australia in the reasonably foreseeable future. The submission notes that on 8 October 2024, the Applicant was granted a bridging R visa and that he has been released from immigration detention and is presently residing in the community. The submission notes that the Applicant would not be removed to country A. Further, that the Applicant would not voluntarily be returned there. The Minister contends that this consideration should be weighed neutrally.
With respect to the impact on Australian business interests, the submission notes that the Applicant previously held employment and established a painting business which was registered for GST from 1 January 2014 to 1 July 2022. The Applicant returned to his occupation as a painter on 4 November 2024. The Minister considers that there is no real prospect of the Applicant being removed from Australia and, as a consequence, this consideration should be assigned neutral weight.
The submission contends that the Minister is of the view that the Tribunal should find that the Applicant does not pass the character test and that there is no other reason why the mandatory visa cancellation decision should be set aside.
The Applicant provided a statutory declaration which was supplementary to the SFIC.[2] The statutory declaration has been duly considered by the Tribunal.
[2] Statutory Declaration of the Applicant Undated, filed 9 December 2024.
In it, the Applicant accepts that he does not pass the character test on the basis of his criminal record and that he had been sentenced to a term of imprisonment of 12 months or more.
The Applicant noted that the Tribunal was bound to have regard to Ministerial Direction 110 with respect to the review before it.
The Applicant stated that he had read the Respondent’s SFIC as provided to the Tribunal on 5 December 2024.
The Applicant acknowledged that the safety of the Australian community is the highest priority of the Australian Government. The Applicant acknowledges that he has violated the expectations of the Australian Government by engaging in dangerous and serious misconduct and violence.
The Applicant did not accept the reported incident of 1 February 2023 whilst he was in prison pertaining to the alleged smoking of an illicit substance.
The Applicant stated that despite his extensive criminal record, he contended that there was no chance that he would re-offend in the future or that there was a future risk he posed to the Australian community. The Applicant states that it was not his imprisonment, or fear of being imprisoned in the future that acts as a deterrent, nor the fear of being deported that acts as a deterrent and that the biggest deterrent is his past actions which have led to his incarceration and the impact that they have had on family and friends.
The Applicant stated that he was reliant on the sworn statements provided by family, colleagues and friends as evidence of his rehabilitation and reintegration into the community since his release from detention on 8 October 2024.
The Applicant acknowledges the profound effect of his offending on his family members.
The Applicant stated that he relies on the fact that he was granted parole by the Department of Corrective Services and was released by Australian Border Force on 8 October 2024, initially with a tracking device fitted, which has subsequently been removed and that he had been issued with two bridging R visa’s subsequent to the first Bridging R visa issued on 8 October 2024.
The Applicant notes that the Respondent has asserted in their SFIC at [80] that he will remain in the Australian community because of the fact that he has been found to be owed protection obligations. The Applicant further notes that the Respondent “…has provided no evidence of any request by the Department or any other authority to have me assessed by a competent expert/authority as to my likelihood of re-offending”. The Applicant notes that since he was released from detention in October 2024 that he had made numerous attempts to obtain assessments by qualified psychologists and psychiatrists to no avail. The Applicant stated that he had managed to facilitate an initial consultation with a psychologist for 13 January 2025. The Applicant stated that he has also attempted to find an expert on recidivism to formally test the likelihood of him re-offending and the respective risk to the community, but that he had not been able to do so to date. The Applicant stated that he did have some consultations with mental health practitioners whilst he was detained but claims that as the person who he was assigned to see was between 26-27 years of age he did not feel comfortable talking to him about his personal problems.
The Applicant stated that since his release into the community in October 2024 he has been working full-time as a painter and has every intention of continuing to work and pay taxes.
The Applicant notes the contention made by the Respondent at [57] of the SFIC that the two months since the Applicant had been released from detention was an insufficient period of time to make any proper assessment of the risk of re-offending. The Applicant in this respect says that he disagrees with the assertion and states that “I believe my actions, since I was released, are evidence that I am determined to be a productive member of the community and the references submitted on my behalf to the Tribunal, which are made by the people of standing in the community are based on their personal knowledge of me and are not baseless conjecture”.
The Applicant made reference to the Respondent’s SFIC at [60] with respect to family violence. The Applicant stated that at the time he was involved with a woman at a time that he and his de-facto were having personal problems in the relationship. The Applicant stated that he and this person maintained a relationship for about two years on and off. This person went to Italy and married and that’s when the relationship ended. The Applicant stated that “one day the police served me with some restraining orders which she had requested. I told the police I would not contest the matters because I had no intention of going near her again. I said I never did anything violent to her and they said she told them clearly that I never hit her”.
The Applicant in the closing paragraphs of his supplementary statement states “I repeat that I am still in need of protection in Australia as I still have a well-founded fear of persecution if I am return to a or anywhere else in Europe. I can assure the Tribunal that I have learnt a significant lesson on responsibility over the past year since my incarceration and apologise to my partner, Tracy, my children, my relatives, my friends and the Australian community for my past extremely serious criminal behaviour, which will never be repeated”.
The Applicant also provided a copy of his response to an invitation to comment on further information provided by the National Character Consideration Centre when considering the cancellation of his visa. The Applicant’s response is dated 17 July 2023. In his response, the Applicant stated that he had read the list of aliases on page 1 of the letter but states that he had never heard of a person called AM (one of the listed aliases with the same initials as other aliases) and that he had never use this name. The Applicant noted that he had been found to be owed protection obligations and could not be removed to country A and that at the time of his response he understood that if the cancellation of his visa was not revoked then he would be detained for an indefinite period. The Applicant claims that he is still in need of the protection of Australia and maintains a well-founded fear of persecution if he is returned to A.
The Applicant states that he had been living in Australia under a false identity since he arrived in 1997 due to his fears emanating from his country of origin and that he has been at pains to avoid the revelation of his true identity. The Applicant states that he is especially concerned for the life of his son who is now over 18 and believes that his son was vulnerable from those that wish to harm him.
The Applicant made reference to the national criminal history check released on 22 May 2023 and accepts it as being an accurate record of his criminal history apart from the listing of the name AM as an alias of his.
The Applicant also makes reference to a prisoner report from Mobilong Prison dated 24 April 2023 making reference to an incident on 1 February 2023. The Applicant stated that he had never been made aware of an allegation of him using smoking paraphernalia to smoke an unknown substance, and the Applicant states that the last time that he smoked anything i.e. cigarettes was at least two years ago.
The Applicant in his response states that the decision was made by the parole Board of South Australia to grant him release on parole on 6 July 2023. The Applicant stated that he was scheduled to be released from prison on 31 October 2023. The Applicant stated that the parole board did not mention anything adverse about him with respect to negative drug results in his parole report. The Applicant restates that he cannot be removed to country A, the Applicant expressed concerns about the prospect of indefinite detention and the Applicant posits that the Department should consider the fact that the parole board had seen fit to authorise his early release on parole. The Applicant stated that he was not a risk to the community and had learnt a lesson with respect to the gravity of his past behaviour and that he would not offend. The Applicant stated that he would abide by the conditions of his release on parole. The Applicant stated that he is aware of the suffering that he has brought upon his wife and children, is remorseful for his offending and would not offend again and requested the department to consider the cancellation of his visa be revoked.
The Tribunal was also provided with a copy of a notice of visa grant with conditions pertaining to the Applicant being issued with a Class WR Bridging R visa dated 8 October 2024.
The Tribunal also received a copy of an individual case plan pertaining to the Applicant’s immigration detention prepared by SERCO and dated 22 March 2024, along with a copy of an individual management plan prepared by SERCO dated 22 November 2023, and an individual case plan prepared by SERCO dated 20 June 2024.
The Applicant also provided details of his medical records during the period of his immigration detention.
REVIEW HEARING
The Tribunal conducted a review hearing on the 12 and 13 December 2024 via Audio-Visual Link.
The Applicant appeared at the hearing from Adelaide with his representative Ms Marian Le. The Respondent was represented by Ms Maria Pappas from the Australian government solicitors.
At the outset of the review hearing the Tribunal went into detail about the process of merits review, the respective issues in the review and outlined details about how the hearing would be conducted.
Ms Le made an opening statement. Ms Le noted that the Applicant was known as Mr Mi and also Mr Me.
Ms Le noted that the Applicant sought a review on 8 October 2024 with respect to the decision to revoke his subclass 866 protection visa under s.501(3)(a) of the Act. Ms Le stressed that this was an important review given the non-revocation was based on the cancellation of the protection visa whereby the Applicant had been found by the Australian government to be owed protection obligations. Ms Le noted that if the Tribunal does not overturn the decision, it is inconsequential, as the Applicant holds a Bridging R visa and would remain in the community.
Ms Le noted that there was only one issue that the Tribunal needed to decide and that was whether there is another reason that the decision to cancel the Applicant’s visa should be revoked. Ms Le noted that the Applicant concedes that he does not pass the character test. Ms Le noted that the Applicant concedes that he has a substantial criminal record and has served periods of imprisonment of 12 months or more.

Ms Le posited that evidence will be provided during the course of the hearing with respect to the Applicant’s rehabilitation and strong evidence provided with respect to the Applicant’s ties to the community and that there is no likelihood that the Applicant will re-offend.
Ms Le noted that the Applicant’s rehabilitation in prison and in immigration detention had been a strong disincentive to the Applicant re-offending. Ms Le posited that this is the principal reason that the ART would find another reason for the decision to be revoked. Ms Le advised that she would not be going through the Applicant’s criminal history. Ms Le posited that the most recent occurrence of offending in 2021 was an aberration that was triggered when the Applicant’s wife was wrongly diagnosed as being terminally ill and the family held a belief for a period of time that her life would be shortened. Ms Le asserted that family members would be substantially affected if the Applicant was removed from Australia. Ms Le stated that the Tribunal would need to take into consideration what would happen in the community because of recent amendments to the Migration Act and that there is a chance that the Applicant would not be able to remain in the community indefinitely. Ms Le posited that the Applicant is not a danger to the Australian community and that the safety of the Australian community is not compromised by the Applicant’s presence in it. Ms Le posited that there are a range of reasons to revoke the cancellation decision with respect to the rehabilitation of the Applicant and the fact that he is no longer a danger to the community.
Ms Pappas for the Minister stated that the Respondent was reliant on their SFIC dated 5 December 2024.
The Applicant advised that his current employment status was that he was in full-time employment as a painter and had been in this role for six weeks since he had been released from immigration detention.
The Applicant advised that with respect to family members in Australia, he had his de facto wife Tracy and two adult children who are all Australian citizens. In addition to his immediate family, he had a sister who is an Australian citizen who is married with two children of her own, and a brother who is a permanent resident and was married with five children.
The Applicant advised that his mother was still residing in A and that he had four sisters. The Applicant advised that one sister resided in Greece, the other in Sweden, and the other two sisters resided between Greece and Albania.
The Applicant advised that after arriving in Australia in 1997 and being imprisoned for trafficking in a commercial quantity of drugs, that he was imprisoned for a three-year period between the age of 19 and 22. The Applicant stated that he was held in Parramatta jail, Long Bay jail and Parklea jail. The Applicant stated that after he was released from prison that he was transferred to the Villawood detention centre and spent seven months in this facility.
The Applicant stated that he made an application for a protection visa on the basis that he could not return to country A because he had a well-founded fear of persecution in that country for a convention based reason. The Applicant, to the best of his memory, did not believe that he was interviewed with respect to his claims for protection. The Applicant stated that he was granted a protection visa on 9 May 2000. The Applicant noted that his protection visa was cancelled by the Department on 20 March 2023. The Applicant stated that Australia owed protection obligations to him, and Ms Le noted that there was no argument from the Minister in this respect.
Ms Le noted that the Applicant had provided three statements which were before the Tribunal for its consideration. Reference was made to the Applicant’s statement of 17 July 2023, in response to a letter from the Department dated 15 June 2023, and to the Applicant’s most recent statement dated 10 December 2024. Ms Le stated that the Applicant was reliant on these statements.
The Applicant stated that he spoke and understood English, having resided in Australia since the age of 19, but was not proficient in terms of reading and writing. The Applicant stated that if he has any difficult understanding a document his wife will read it to him. The Applicant stated that when he was in prison or detention friends would assist him in understanding the contents of documents. The Applicant stated that when statements were compiled with respect to the review and with respect to the cancellation of his visa that they were read back to him by somebody else and that he understood and accepted their contents. The Applicant stated that he accepted that he did not pass the character test.
Ms Le noted that Ministerial Direction 110 had been explained to the Applicant. With respect to safety of the Australian community, the Applicant stated that his understanding was that people have to be well-behaved and not have criminal records. The Applicant acknowledged that he had violated the expectations of the Australian community.
Reference was made to an incident that happened when the Applicant was in prison in February 2023, which related to the Applicant being allegedly in the possession of smoking paraphernalia. The Applicant stated that he had no knowledge of this incident and that to the best of his knowledge this incident was not attributed to him. The Applicant stated that if he was involved in an unlawful incident in prison that he would be punished. The Applicant stated that around the time of this incident he was moved to a less restrictive part of the prison which lends support to his assertion that the incident was not attributable to him. The Applicant stated that he has tried to speak to prison officials and to the Ombudsman with respect to the incident but has not received a response to date.
The Applicant advised he was granted parole on 6 July 2023 and that the Parole Board did not mention anything about the alleged smoking incident. The Applicant stated that he stopped smoking cigarettes around 18 months before the alleged incident.
Ms Le noted that the Applicant had an extensive criminal record and that despite this, he posed no risk to the Australian community of re-offending. Ms Le asked the Applicant what this was based on. The Applicant stated that whilst he was in jail he thought critically about the impact of his offending on his family. The Applicant noted that his daughter had been suicidal in the past and had made an attempt on her life. The Applicant stated that his daughter still engages with a psychiatrist and that she has gone through a difficult time. The Applicant stated that he had also thought about the impact of his offending on the victims concerned. The Applicant stated he had put somebody through a terrible experience, and that this was not right. Ms Le noted that there was no evidence that the Applicant had ever apologised to the victims of his 2021 offending. The Applicant stated that he told his criminal lawyer before he went to trial that he was sorry for what he did, and he was told his lawyer would tell this to the judge and it would be conveyed to the victims.
The Applicant stated that his strongest motivation not to re-offend was his family and his friends and the adverse impact of his offending on his family. The Applicant stated that he had been in a long-term relationship with his de facto wife Tracy and that his daughter was now aged 19 and his son was aged 21.
The Applicant described the circumstances leading up to being arrested in 2021 and the impact of this offending on his family. The Applicant stated that he had a close family. The Applicant reiterated that his daughter was going through a difficult time at the time of his offending and that his son was working at the time to help pay rent and meet cost of living expenses. The Applicant stated that around this time his wife was misdiagnosed with terminal cancer and that his daughter attempted to overdose with tablets and was hospitalised. The Applicant stated that prior to this incident his daughter had been happy, had been a cheerleader, and had been functioning well. The Applicant stated that he found a letter in his daughter’s room which was directed to him. The Applicant stated that it was indicative of the fact that he was very close with his daughter. The Applicant described the relationship with his daughter as one built up over many years. The Applicant advised that his son was a good person and was hard-working. The Applicant stated that when he was locked up in prison that his son helped his wife a lot and had missed out on a lot of things such as holidays because he was giving money to his mother. The Applicant stated that he maintained contact with his family whilst he was in prison and that his family visited him in prison. The Applicant stated that he apologised to his family for his offending and that they were very supportive of him when he was in custody.
The Applicant stated that his offending had a substantial impact on his wife who had to step up and care for their children whilst undergoing financial struggles as a consequence of the loss of the Applicant’s income. The Applicant stated that he was initially imprisoned in South Australia around four hours from his family but was eventually moved to a closer jail where the family could visit more regularly.
Ms Le noted that there had been a long period of time during the Applicant’s life in Australia leading up to the offending in 2021 during which the Applicant committed no offences. The Applicant stated that prior to the offending in 2021 he had been in a downward spiral for a range of factors and was using alcohol along with methamphetamines for about 4 to 5 months and hanging around with a bad crowd of people.
The Applicant stated that he ran a painting and decorating business successfully for a number of years employing between 8-10 people. The Applicant painted for Metricon Builders and then for Burbank Builders. The Applicant stated that he was doing well in the business prior to the outbreak of the global pandemic.
The Applicant was asked about his education in country A. The Applicant stated that he only completed year 8 of schooling. The Applicant stated that his father had problems with people in his village and was locked up as a consequence which caused problems for the family. The Applicant stated that as a consequence of a blood feud in country A he had to leave the country in fear of his life.
The Applicant gave evidence about his wife and children. The Applicant stated that leading up to his offending there had been a series of challenging life events. As advised, his wife was misdiagnosed with terminal cancer which created anxiety and distress within the family unit. The Applicant reiterated that his business suffered considerably as a consequence of the global pandemic and also because of his switch from Metricon to Burbank builders as Burbank were very unreliable.
The Applicant stated that prior to the offending in 2021 that his criminal record mostly related to cannabis offences and some traffic-related offences. The Applicant described the firearms offence in 2021 as a one-off.
The Applicant stated that by nature he believed he was a good person and a good father. He stated that he had never threatened anyone’s life and that his behaviour with respect to the 2021 offending occurred at a bad time in his life when he was hanging around with the wrong crowd and abusing methamphetamines and alcohol.
The Applicant stated that he had built up a good life for he and his family and that things unravelled because of factors such as the pandemic, the misdiagnosis of his wife, and his teenage daughters suicide attempt. The Applicant stated that contractors were not being paid on time, as a consequence his sub-contractors were not able to be paid and the Applicant described a fear of failing as a provider. The Applicant stated that on the day of the offending in 2021 he had been drinking and consuming methamphetamines and that he did not plan the offence and stated that this type of offending would never happen again.
The Applicant was asked whether he had attempted to obtain any assistance with respect to dealing with life stressors in the future. The Applicant stated that when he was in prison he undertook a number of courses. The Applicant stated that when he went into immigration detention that he saw a psychiatrist. The Applicant stated that he is currently seeing a general practitioner, Dr Vaska, who has worked in the prison system in the past and that he has been referred to a psychiatrist in the community who will see the Applicant on 13 January 2025.
The Applicant stated that he had been trying to organise an assessment of himself with respect to his risk of recidivism but had not been able to find anybody prior to the hearing. The Applicant stated that no one in immigration detention or in prison had undertaken an assessment of his risk of recidivism. The Applicant stated that he told welfare in immigration detention about his daughter’s mental health struggles and volatility and that they suggested to the Applicant that it would be in his interest to seek professional help. The Applicant stated that when he was in immigration detention in Western Australia that he had a consultation with a female psychiatrist. The Applicant stated that since he had been released into the community on a Bridging visa he had been trying to schedule an appointment with a psychologist in the community.
The Applicant’s representative noted that the Applicant had only been living in the community for the past two months and asked the Applicant what he wanted to put forward to the Tribunal with respect to any risk of re-offending. The Applicant stated that he never caused problems in detention or jail. The Applicant stated that he has not engaged in any criminal offending for the past three years and that there were no behavioural issues with respect to his time in prison or immigration detention. The Applicant stated he never failed any drug tests in prison or detention.
The Applicant was asked whether he was aware of the latest developments with respect to changes to the Migration Act. The Applicant stated that the government could send a person to different countries.
The Applicant was questioned about a restraining order with respect to a woman with whom he had engaged in an extramarital affair. The Applicant stated that the affair was over, the woman was now married, and with respect to the restraining order there was no violence and that he never contested the order sought.
The Applicant gave evidence about the two months since he was released from detention on his return to living with his family in the community. The Applicant stated that the family unit was a happy one. The Applicant stated that his partner is happier as her life is getting easier and that he has re-established strong connections with his two adult children. The Applicant stated that his daughter had recently secured a job and had enrolled in a course of studies. The Applicant stated that his son is much happier and has just obtained a new job and everything was going well for him. The Applicant stated that he has regular interaction with his nieces and nephews and the family tried to organise regular catch ups with extended family members.
The Applicant stated that in the two months that he had been living in the community he was going to work as a painter on a full-time basis, he was seeing Dr Vasko on a regular basis and was scheduled to be assessed by a psychiatrist in January 2025. The Applicant stated that he had developed a good relationship with Dr Vasko who he described as easy to talk to.
The Applicant was cross examined. The Applicant advised that he was 48 years old, but he was born in country A and that he left country A in 1991 when he was around 16 years old and spent 2 ½ years living in Italy.
The Applicant confirmed that after his arrival in Australia he was arrested with respect to trafficking drugs and was imprisoned for 3 years and then put into immigration detention for around 7 months. The Applicant stated that he was then granted a protection visa. The Applicant advised that he met his partner whilst he was in prison as she worked in prison. The Applicant advised that he had a son born in 2002 and a daughter born in 2005. The Applicant stated that the relationship with his partner had suffered a few ups and downs along the way. The Applicant stated that he and his wife purchased property in South Australia 17 years ago.
The Applicant was asked about his partners cancer misdiagnosis. The Applicant stated that he believed that as a consequence of the diagnosis that his partner had a short lifespan. The Applicant appeared unsure about his partners diagnosis.
The Applicant stated that his business started to go badly when he switched contracts from Metricon to Burbank. The Applicant stated that COVID-19 restrictions limited the number of people on worksites. The Applicant stated that Burbank were also very poor in paying invoices which caused significant cash flow issues.
The Applicant confirmed that at the time of his arrival in Australia in 1997 he was smuggling drugs into the country using a forged passport. The Applicant confirmed that his sister’s ex-husband organised the Australian passport in which his photo was substituted and was the mastermind behind the trafficking of heroin.
The Applicant stated that when he left country A to Italy that he had no official documents.
With respect to his driving offences, the Applicant stated that he has no recollection of a 2003 offence for disobeying a licence condition. With respect to a drive while disqualified conviction in 2000, the Applicant believed that he was suspended from driving because of loss of points. The Applicant stated that because of his poor driving history he spent an extended period of time holding a provisional license. The Applicant stated that he lost points on his license for speed related offences and red light camera offences. The Applicant stated there was only one incidence of drink-driving. The Applicant also stated that he drove an unregistered vehicle and drove whilst disqualified.
The Applicant discussed his cannabis offending. The Applicant described himself as a weekend user of cannabis and stated that he had engaged in the cultivation of cannabis as a friend had recommended it to him as a way of making money when he was not working.
Reference was made to the Applicant’s offending at which time he was found to be in possession of two knives and an axe in the boot of his car. The Applicant stated that he was returning from fishing at the time and the items were eventually returned to him by police.
The Applicant made reference to another cannabis offence where he was moving cannabis from one place to another and was pulled over. The Applicant pled guilty to the offence as he was using his motor vehicle to transport the drugs. Discussion was had with respect to the motor vehicle having no rear numberplate and tampered front numberplates. The Applicant stated that he was not responsible for the state of the numberplates.
The Applicant confirmed only one offence for drink-driving. The Applicant recalled an offence in 2014 with respect to possessing equipment for the cultivation of hydroponic cannabis. The Applicant stated that this offending related to a woman with whom he was having an affair at the time who was a Customer Service Manager with Qatar Airways at Adelaide Airport. The Applicant claims that he took the blame for this offending so the woman would not lose her position.
Reference was made to the Applicant’s 2021 offending. The Applicant outlined the circumstances in which he attended residential premises brandishing a firearm in an attempt to retrieve a Mercedes Benz on behalf of a friend. The Applicant stated that at the time of the offending he was substantially impacted by alcohol and methamphetamines. The Applicant confirmed that he waved the firearm while standing on the front door of the premises and described being scared at the time. The Applicant conceded that his conduct with respect to this offending would have been frightening. The Applicant conceded that the impact of his offending on the victim would have made them fearful within their own home. The Applicant stated that his accomplice with respect to this offending was a female that he knew as an acquaintance. The Applicant stated that the gun did not belong to him.

The Applicant was questioned with respect to a domestic violence intervention order. The Applicant stated that he was in an on-off relationship with another woman and that he was served with an intervention order just before Christmas, the Applicant stated that there was no violence involved, just text messages between the parties. The Applicant believed that this occurred in around 2019-2020. The Applicant stated that he did not contest the intervention order on the basis that he did not intend to speak to this woman again.
The Applicant gave evidence that during the time that he was abusing methamphetamines that he moved into the granny flat attached to his residential premises in Adelaide predominantly to hide his addiction from his family.
Reference was made to an incident that occurred whilst the Applicant was in prison, that related to the Applicant using smoking paraphernalia to smoke a substance. The Applicant stated that he had no understanding of why this event was attributed to him as he had never smoked illicit substances in prison. The Applicant stated that he had made specific enquiries of prison officials and other officials such as the Ombudsman with respect to this offending. The Applicant stated that at the time that he was paroled from prison no reference was made to this purported offending.
With respect to the Applicant’s drug and alcohol use, the Applicant stated that he had smoked cannabis on a few occasions, had used cocaine socially and consumed alcohol. The Applicant stated that in 2021 he abused methamphetamines for a number of months prior to his 2021 offending, arrest and subsequent imprisonment. The Applicant stated that he had never used heroin. The Applicant advised that he had never sought remedial intervention or rehabilitation with respect to drug use. The Applicant stated that he never used drugs in front of his family and that when he was abusing methamphetamines he would smoke the substance. The Applicant stated that he had never driven whilst impacted by drugs and would only drive the day after using drugs. The Applicant stated that his recreational cocaine use occurred during his 20s and 30s and that he stopped using cocaine because of the inherent costs involved. The Applicant stated that another impact of his methamphetamine use was that you could not spend time with family and could not function as a person.
The Applicant advised that he was introduced to methamphetamine use at a family event. The Applicant stated that his methamphetamine use started slowly at around half a gram per week but grew to 3 to 4 grams per week.
The Applicant stated that when he was using cocaine in his 20s and 30s that the habit was funded with the proceeds of the sale of cannabis.
The Applicant advised that when he spoke with general practitioners and psychologists whilst detained that he told them about his drug use. The Applicant confirmed that prior to seeing a psychologist in detention, he had never sought assistance for his drug and alcohol abuse. The Applicant stated that whilst he was in detention, he completed a Smart Recovery program from which he had learned strategies for controlling cravings and urges to use drugs and, that he learned techniques to stay drug-free and how to be mentally strong and to seek help if required.
The Applicant stated that in the six weeks that he had been living in the community that he has been working full-time, interacting with his family, consulting with Dr Vasca and had made an appointment to see a psychiatrist in January 2025.
The Applicant stated that he was engaging with a psychiatrist to try to learn more about himself and to show his family that he was accepting help and assistance with respect to his past drug and alcohol use.
With respect to avoiding past drug using associates, the Applicant stated that he had changed his telephone number, blocked Facebook and was not engaging in any social media.
The Applicant stated that the strongest incentive for him not to re-offend is that he does not want to hurt his wife and children. The Applicant stated that it has taken a while for him to grow up with respect to his previous lifestyle.
The Applicant gave evidence that he was close to his nieces and nephews in Australia and is actively involved in their lives. The Applicant stated that no family members have any concerns about him being involved in their children’s lives.
The Applicant confirmed that since his release into the community six weeks ago that he has been working full-time getting between approximately 40 to 60 hours a week as a painter. The Applicant confirmed that since his release into the community he has had no engagement with previous associates. The Applicant stated that if he found himself in a difficult or stressful situation again that he would be able to lean on the support of his wife and his sister. The Applicant stated that unfortunately, because of his criminal record, he has not been able to engage in voluntary work in the community.
Wife - Tracy
Evidence was provided by the Applicant’s de facto wife Tracy.
The witness advised that she had been in a de facto relationship with the Applicant since 2000 and that they had two adult children from the relationship - a son and daughter. The witness stated that she worked as the second in charge of four medical centres located across Adelaide. She advised that she did not have a criminal record and had previously worked in jails and merchant banks. She advised that her mother was a Judge and passed away at 48 and that she had a close relationship with her grandparents who ostensibly raised her. The witness advised that she arrived in Adelaide on 19 July 2000 at the time that she commenced a relationship with the Applicant.
The witness talked about the difficulties of engaging with her husband after he was imprisoned because of the fact that he was initially held in Port Augusta in South Australia. She described similar problems when he was sent to Yongah Hill in Western Australia. She advised that during the time that her husband was imprisoned and in immigration detention the family endeavoured to visit him as much as they could, however, they were financially prohibited from travelling to Western Australia. The witness stated that when the Applicant was in Western Australia, he had access to a mobile phone, and that the family were able to contact him on a regular basis via mobile. The witness stated that during the time that the Applicant was incarcerated their daughter experienced mental health problems. The witness stated that the ability for her daughter to speak with her father when he was in immigration detention assisted greatly.
The witness spoke about her misdiagnosis with cancer. The witness stated that she was diagnosed with ovarian cancer, at the time she was in her early 50s and that she had some concerns about her health. She advised that she was referred to a medical specialist, Dr Yap, who formed the view that the Applicant was suffering with ovarian cancer. The witness stated that Dr Yap suicided soon after the diagnosis. The witness stated that as a consequence, she sought a second opinion, and this revealed that she was not suffering with cancer but some other medical issues that are able to be dealt with surgically. The witness stated that she had suffered with some cancers as an adult which required regular examination and removal. The witness stated that when she had surgical intervention it was during the Covid period and she had to attend hospital on her own. The witness stated that the Applicant was uncomfortable speaking about private issues with women and their body parts. The witness stated that the Applicant knew that it was serious and found it difficult to engage in conversation about the prospective diagnosis. The witness stated that her grandmother had a cancer history as did her grandfather. She stated that the children were unaware of her cancer diagnosis and were only told about her medical issues when she was given the all clear.
The witness gave evidence about the Applicant’s drug use. She advised that she believed that the Applicant was impacted by her cancer diagnosis. She advised that prior to that point in their lives, the Applicant had been a family man who worked very hard to support his family. She stated that after the cancer diagnosis his demeanour and attitude changed, his personal hygiene changed and slowly he became a different person. The witness stated that she and her children were relieved when the Applicant went to prison to serve a full-time custodial sentence because they believed that this would assist him with his withdrawal from methamphetamine usage. The witness stated that the Applicant sought professional help and counselling whilst in prison and immigration detention. The witness stated that the Applicant had been trying to obtain a report from a relevant medical professional with respect to an assessment of his risk of recidivism, however, this had proved difficult in the time that he had been living in the community. The witness stated that her husband is committed to seeing a psychologist going forward and has developed a relationship with Dr Vasca - a general practitioner who has experience with drug and alcohol counselling. She advised that the Applicant had seen Dr Vaska twice in person and once via a telephone consultation since his release into the community.
The witness stated that the Applicant’s fears with respect to country A are well-founded and that she will not let her children visit Country A or indeed countries in close proximity to Country A. With respect to the blood feud that hangs over the Applicants head, the witness stated that it was also applicable to their son. The witness stated that a significant impact of the ongoing cancellation of the Applicant’s visa would be that the family would be in limbo with respect to the Applicant’s status and the ongoing potential of his removal to a third country. The witness stated that her daughter had suffered immensely, as had her son, since the Applicant’s imprisonment in 2021 for his most recent offending.
The witness gave evidence that since the Applicant had returned to live in the family unit that things have improved for the better. By way of example, the witness stated that their daughter had just obtained a job and entry into a skills course. The witness stated that whilst the Applicant was detained, their son had to step up in terms of financial support and as a consequence had missed a lot of young adult milestones. The witness stated that if the Applicant’s protection visa is cancelled that it will create ongoing uncertainty and anxiety and will impact the family’s goals going forward. The witness implored the Tribunal to assist in giving “our life back”.
With respect to the Applicant’s offending, the witness stated that the Applicant was ‘an idiot’ and that what he did was horrible, however, she believed that he deserved a second chance and that his offending was out of character and was impacted by his drug use. The witness stated that she maintained belief in the Applicant and that if she did not believe in him she would not be here to support the Applicant at hearing. The witness stated that she is a mother first and has two deep connections to the Applicant through their two children. The witness stated that she had told the Applicant not to come back into the relationship and “screw the family again”. The witness stated that in the six weeks that the Applicant had been residing within the family unit that she saw a different person with respect to his intentions, his demeanour and his mannerisms. She advised the family had introduced ‘cousin catch ups’ once a month so that the Applicant can be an uncle to his nieces and nephews. The witness stated that she had been her partner’s hardest critic, but she felt that she had seen a significant difference in him since his term of imprisonment and subsequent immigration detention.
The witness stated that the Applicant’s relatives had no qualms about leaving their children in the care and control of the Applicant because he is trusted, loved and a respected member of the family.
The witness was asked whether her children would have any difficulty giving evidence with respect to their father and she advised that they would not.
The witness was asked about the affair that the Applicant had with another woman. The witness stated that she knew that the Applicant had an affair with another woman but did not know how long the affair had gone on. She became aware about the affair through messaging that she discovered on his mobile phone. She also noticed some behavioural differences with the Applicant not coming home after work, not answering his phone and when she found out about the affair, she gave the Applicant an ultimatum stating, “I am not going to fight for you if you do not want to fight for us”. The witness talked about the humiliation of having the Applicant’s former partner attending their home on a number of occasions after the breakdown of the affair. The witness stated that the Applicant’s partner in the affair served a restraining order upon the Applicant and the police attended the family premises to serve it. The witness believed that the apprehended violence order was issued as a consequence of this former partner being “a woman scorned”.
The witness stated that when this woman attended the family premises that she confronted her and told her to stop coming around. The witness stated that there was no evidence that the Applicant had made any physical threats or threats of violence to this woman. The witness advised that she told the Applicant to get the restraining order sorted as the Applicant stated that the woman had gone away, that she was now married and there was no need to follow it up.
The witness gave evidence with respect to the Applicant’s business. She advised that at its height, the Applicant was employing up to 8 painters and was undertaking a lot of work for Metricon and then Burbank who were construction companies operating in South Australia. She advised that Metricon had been a good contractor, however, Burbank were problematic and this led to financial problems in the business. The witness advised that the Applicant’s painting business was also adversely impacted by the COVID-19 pandemic.
The witness gave evidence that despite the Applicant engaging in an extramarital affair that she forgave him and was committed to their ongoing relationship given the length of their relationship and the fact that they had two children together. The witness stated that she and the Applicant had a lot of good times together and a lot of memories and that she believed in her heart that the Applicant would be good to her and their children going forward.
The witness confirmed that the Applicant had not consumed drugs in front of her or in front of the children. The witness identified a deterioration in the Applicant’s behaviour after her erroneous cancer diagnosis, when the business started to experience problems and when the couple’s daughter was struggling with her mental health and made a suicide attempt. The witness stated that the suicide attempt was made prior to the Applicant going into prison. The witness stated that she called an ambulance after it became apparent that her daughter had taken an overdose of pills and that their daughter had left a note that was directed to the Applicant. The witness stated that this demonstrated the strength of their relationship.
The witness advised that since the Applicant had returned to the family home after being released from immigration detention that spirits in the family had lifted. She advised that her daughter had recently obtained part-time work and had enrolled in the course of study. The witness stated that the Applicant is more relaxed, there had been a complete change in their daughter’s demeanour and spirits. The witness stated that her son is going out with friends after having to assume a ‘breadwinner role’ whilst the Applicant was in detention. She advised that the Applicant had cut people out of his life, that he is fixing things around the home and seems to be a very different person, post his imprisonment and immigration detention.
The witness stated that their daughters attempted suicide before the Applicant was jailed and when he was using methamphetamines. During this period ,she described the Applicant not coming home, being away from home for 2 to 3 days at a time, not sleeping, not maintaining personal care, and she described him as not being a human being. She advised that the Applicant moved out to the granny flat, and she was desperately trying to keep down a job.
The witness stated that the Applicant went into a downward spiral after their daughter’s suicide attempt. The witness stated that she had engaged in a number of discussions with the Applicant since he had returned home. She advised that she had told the Applicant that he must ‘toe the line’ with respect to her and their relationship and the relationship with his children. She has insisted that the Applicant not engage in partying or drug use. The witness stated that the Applicant had apologised to her and the children for his past behaviour and she believed that he is now a different person. The witness stated that she believed that the Applicant is not a threat or risk to Australian society and that the consequences of the Applicant re-offending would create significant problems in his life and lead to the loss of his family and she stated that their children deserve a father that they can trust.
The Tribunal noted that the witness had met the Applicant in 2000 whilst he was in prison. The Tribunal noted that the Applicant spent three years in prison for his offending in 1997, and has continued with a pattern of offending in the intervening 27 year period. The Tribunal asked the witness why she believed the Applicant had changed given her observations of him in the short time that he had been outside detention. The witness stated that for about nine months before the Applicant was released from prison that she noticed a definite change in his attitude and that she and the Applicant had engaged in lots of conversations over the years whilst he was in prison and in immigration detention. She believed that the Applicant had developed a different mindset with a different set of values and is cognisant of the substantial impact of his past actions with respect to those he loves. The witness noted that a partner can come and go, however children are lifelong and she believed that the Applicant’s life values were markedly different since the offending of 2021.
The witness stated when asked whether the Applicant apologised to the victims of his 2021 offending, he advised that he apologised to the court in those proceedings, and she is not sure whether the apology was conveyed to the victims.
The witness was asked whether she believed the Applicant, given his criminal record and 27-year history of offending, that he was a danger to the Australian community now, and the witness stated that if she did not believe in the Applicant she would not be providing evidence and nor would their children. The witness stated “I would not put my children through this if I did not feel he was a different person. I can live without a man. I have not had him in my life for the last three years. Our financial situation will improve considerably over the next couple of months as a result of my grandmother’s death.”
The witness was questioned by the Minister’s representative. The witness confirmed that she had been second in charge of four medical centres over the past four years. She advised that she and the Applicant had lived in their current Adelaide home for 20 years and that the title deed for the home was in the Applicant’s name because she is part of a family trust in Sydney and the Applicant received the first home owners grant which she would have been ineligible for. The witness stated that she helped the Applicant with invoicing in the painting business and confirmed the problems with the business over time with COVID and the switch to Burbank from Metricon.

The evidence before the Tribunal indicates that the applicant obtained skills as a painter working for an employer before establishing his own business which he successfully ran until it was adversely impacted by a change in contractors and the global pandemic.
The evidence before the Tribunal indicates that the applicant has a very close relationship with his adult children and a particularly close bond with his daughter L who in recent years has suffered with fragile mental health.
The applicant’s son in his evidence at hearing described his father as ‘a hero’ on the basis that he arrived in Australia with limited funds in 1997 and went on to form a relationship with his mother, established a painting business, purchased a home, and raised two children.
As has been noted the applicant has a particularly close relationship with his daughter and his release into the community from immigration detention and his resumption of living with his family in South Australia has had a profound and positive impact on the family unit. The absence of the applicant during his period of imprisonment and immigration detention had an adverse impact on the family unit’s financial situation. The applicant’s son as a consequence had to provide most of his wage to his mother so that the family could meet their financial obligations when the applicant was incarcerated. Since the applicant returned to live within the family unit, his 21-year-old son’s life has returned to a more normal course of work and socialising with his peer group and relatives. The evidence indicates that the applicant’s 18 year old daughters mental health has substantially improved since the applicant returned to the family unit. Indeed, the applicant’s daughter has recently found employment and enrolled in the course of study and evidence was provided at hearing that indicates that the applicant’s return to the family unit had a profound and positive impact on his daughter.
A number of witnesses provided written evidence to the Tribunal attesting to the applicant’s good character. A number of those witnesses provided oral evidence at the review hearing.
With respect to this consideration decision-makers are required to consider any impact of the decision on the non-citizens immediate family members in Australia.
The evidence as discussed indicates that the applicant and his de facto wife have a long-term relationship that has survived the period of the applicant’s infidelity. The evidence indicates that the applicant and his de facto are committed to a future life together. The evidence provided at review by the applicant’s de facto indicate that the prospective removal of the applicant from Australia would have a profound impact on her and on their children.
It is clear from the evidence of the applicant’s children provided at review both in statements and in their oral evidence at hearing that they are very close to their father. The Tribunal has made reference to the applicant’s daughters fragile mental health. The evidence of the closeness of the bond between the applicant and his daughter is evidenced by the fact that when she attempted suicide, she left a suicide note which was only directed to the applicant. The evidence indicates that when the applicant was transferred to immigration detention and had access to a mobile device that his daughter was able to resume regular communication with her father which had a positive impact on her mental health. The evidence before the Tribunal indicates that since the applicant was released into the community six weeks ago that his daughters mental health has continued to improve and she has been able to manage to find a job and to enrol in a course of study. The applicant’s son gave evidence in glowing terms with respect to his relationship with his father and the Tribunal is satisfied on the basis of the evidence that the applicant’s two adult children would be adversely impacted by the prospective removal of the applicant. The Tribunal further finds in the event that the applicant’s protection visa remained cancelled that the fact that he could be placed on removal pathway to another country by the government would cause great anxiety and instability within the family unit because of the ongoing uncertainty around the prospect of this happening.
Sub-paragraph (b) of paragraph 8.3(2) of the Direction directs the decision-maker to consider the strength, duration, and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has a long term Australian citizen de facto partner and two Australian citizen children resident in Australia a son aged 21, and a daughter aged 18.
The Applicant has provided statements from colleagues and friends who have attested to his work ethic and his good character.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs strongly in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4(1) of the Direction obliges a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision.
Paragraph 8.4(2) provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made.
Paragraph 8.4(3) provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant has a number of nieces and nephews (all minors) with whom he maintains an ongoing relationship.
Sub-paragraph (a) of paragraph 8.4(4) points to a consideration of 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).
The Applicants relationship with his nieces and nephews existed prior to his incarceration and his interaction with them was curtailed by his period of imprisonment from October 2021 and his subsequent immigration detention.
The Tribunal notes that the applicant has only been residing back in the community for 6 weeks which is not a significant period of time. The Applicant in that time has agreed with his family to have regular family catchups with his siblings, their partners and his nieces and nephews.
The Tribunal notes that the relationship that the Applicant has with his nieces and nephews is a non-parental one and that it has only recommenced after his almost 3 year period of incarceration.
Sub-paragraph (b) of paragraph 8.4(4) points to a consideration of 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.
Sub-paragraph (c) of paragraph 8.4(4) points to a consideration of 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.
Sub-paragraph (d) of paragraph 8.4(4) points to a consideration of 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.
Sub-paragraph (e) of paragraph 8.4(4) points to a consideration of whether there are other persons who already fulfil a parental role in relation to the child.
Sub-paragraph (f) of paragraph 8.4(4) points to a consideration of any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
These sub-paragraphs do not apply with respect to the Applicant as his son and daughter are now adults aged 18 and 21 respectively.
Sub-paragraph (g) of paragraph 8.4(4) points to a consideration of any 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.
Sub-paragraph (h) of paragraph 8.4(4) points to a consideration of any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Considering all of the evidence before it under this Primary Consideration, the Tribunal is satisfied that the best interests of minor children in Australia should be given neutral weight with respect to the revocation of cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 should be given neutral weight in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached this expectation through his criminal conduct.
The Applicant’s first instance of criminal conduct was in 1997 when he arrived in the country and was caught with a trafficable amount of heroin at Sydney airport. In sentencing with respect to this offence Judge Viney noted that the reason the Applicant engaged in this conduct was to enable him to obtain a passport to travel to Australia and ultimately apply for a protection visa. The Judge described the Applicants role in this offending as not being a principal. Judge Viney noted that with his lack of knowledge and means and his lack of English that “there is no way he would have been able to organise this importation”. The Judge concluded that with respect to this offending the Applicant was a mule or a courier and acknowledged that “he was apparently not to receive any reward other than the opportunity to claim he was a refugee in this country and thus gain status and perhaps freedom from threat that obviously still subsists against him in his own country”.
Paragraph 8.5(2) of the Direction directs that a 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 are such that the Australian community 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 conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter 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’ include 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, financial 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 their 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.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.
Paragraph 8.5(4) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which a decision maker is required to have regard to.
As has been extensively discussed in this decision record the applicants offending in October 2021 which grounded the cancellation of his protection visa was serious in nature. The Tribunal notes that with respect to the circumstances of the offending that the applicant was in a downward spiral of methamphetamine and alcohol abuse and that the offending occurred whilst the applicant was profoundly impacted by methamphetamines and alcohol. This factor in no way exonerates the applicants offending. As has been extensively discussed in this decision record the applicants offending conduct involved brandishing a loaded firearm in a member of the public’s yard in a foiled attempt to retrieve what was perceived to be a stolen Mercedes. It is fortunate given the state of the applicant that no one was injured during the incident.
The Tribunal notes that this incident with respect to the applicant’s offending history was the first incident of violence with the balance of his offending after 1997 relating to the cultivation of cannabis and a range of traffic offences.
The applicant has given evidence that the period of imprisonment following his October 2021 offending and the seven months that he spent in immigration detention led to a substantial period of time to withdraw from methamphetamine use and to carefully reflect on his errant ways and the adverse impact of his behaviour upon his family unit particularly his daughter who suffers with mental health issues.
Evidence has been adduced at review with respect to the Applicant’s underlying character. A large number of character references were provided on behalf of the applicant in this respect. Evidence was obtained from a number of the deponents of these references at the review hearing. Evidence was taken from the applicant’s long-term accountant who has had a professional involvement with the applicant from 2013 to date. Evidence was taken from the applicants former and now current employer. The recurrent theme in these references was that the applicant had a strong work ethic, was committed to his family, went through a difficult period of time and unfortunately slipped into methamphetamine use. The witnesses stated that the period the applicant had been incarcerated had led to a substantial turnaround and they believed that the applicant would not offend going forward and was committed to the preservation of his family unit and to working hard to contribute financially to the family unit.
The Applicant’s criminal conduct in in October 2021 is able to be contextualised and was conducted in a haze of drug and alcohol abuse. It was serious and involved violence directed at a woman. Upon consideration of the evidence before it, the Tribunal is satisfied that the expectations of the Australian community, particularly given the community’s intolerance for any form of violence weighs against the revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 5
On balance with respect to Primary Consideration 5 the Tribunal gives some weight against the revocation of the cancellation of the Applicant’s visa
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.
(a) Legal consequences of the decision
As ha been noted the Applicant was found by the then Refugee Review Tribunal in January 2000 to be owed protection obligations. As a consequence, paragraph 9.1.1 of the Direction is engaged, and non-refoulement obligations are engaged with respect to the Applicant.
Paragraph 9.1.1 of Direction 110 provides:
(1) Where the protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non- citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns 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 the 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 2.12AA of the Regulations
The Tribunal has had regard to Section 197(3)C of the Migration Act which addresses the relevance of Australia’s non-refoulement obligations to removal of unlawful non-citizens under section 198 of the Migration Act it states that:
Relevance of Australia's non - refoulement obligations to removal of unlawful non - citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non - refoulement obligations in respect of an unlawful non - citizen.
(2) An officer's duty to remove as soon as reasonably practicable an unlawful non - citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non - refoulement obligations in respect of the non - citizen.
(3)  Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non - citizen to a country if:
(a)  the non - citizen has made a valid application for a protection visa that has been finally determined; and
(b)  in the course of considering the application, a protection finding within the meaning of subsection   (4), (5), (6) or (7) was made for the non - citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c)  none of the following apply:
(i)  the decision in which the protection finding was made has been quashed or set aside;
(ii)  a decision made under subsection   197D(2) in relation to the non - citizen is complete within the meaning of subsection   197D(6);
(iii)  the non - citizen has asked the Minister, in writing, to be removed to the country.

There is no evidence before the Tribunal that the protection finding with respect to the Applicant has been quashed or set aside or that a decision has been made under subsection 197D(2) in relation to the non-citizen is complete, within the meaning of subsection 197D(6), or that the Applicant has asked the Minister to remove him from the country.
The evidence indicates that as the Applicant is the subject of a protection finding made by the then Refugee Review Tribunal in January 2000 that he consequently does not face the prospect of removal to A.
The Tribunal has had regard to the Migration Amendment (Removal an Other Measures) Bill 2024 which was given Royal Assent on 4 December 2024.
The effect of these amendments is that they require non-citizens who are on a removal pathway and who have exhausted all available avenues to remain in Australia to cooperate with any steps that are taken for the purpose of arranging their lawful removal from Australia. The amendments also provide for the cessation of certain bridging visas (such as a Bridging visa R) which is currently held by the applicant, in circumstances where the holder of the bridging visa has been granted permission by a foreign country to enter and remain in that country and enables the Minister to make a decision that a protection finding would no longer be made in relation to a non-citizen who holds a visa as a removal pathway non—citizen.
Section 76AAA of the Migration Act 1958 (the Act) provides for the cessation of certain bridging visas:
Cessation of certain bridging visas--holder has permission to enter and remain in another country
(1)  This section applies in relation to a non - citizen if:
(a)  the non - citizen holds a Subclass 070 (Bridging (Removal Pending)) visa; and
(b)  the non - citizen has permission (however described), granted by a foreign country, to enter and remain in that country; and
(c)  the foreign country is a party to a third country reception arrangement (within the meaning of section   198AHB) that is in force; and
(d)  none of the following apply:
(i)  the non - citizen has made a valid application for a protection visa that has not been finally determined;
(ii)  the non - citizen could not be removed to the foreign country because of subsection   197C(3) if the non - citizen were an unlawful non - citizen;
(iii)  the non - citizen is a child under 18.
Post hearing submissions were made by the Minister’s representative with respect to the impact of these amendments having regard to the Tribunals consideration of the legal consequences of decision under section 501 or 501CA of the Act.
With respect to the introduction of s.76AAA of the Act the submission notes that:
“this means that where a protection finding has been made in respect of a person for a particular country and the person cannot be removed from Australia because of that finding under s.197C of the Act, the person can be removed to a different country that is a party to third country reception arrangement as defined under s.198AHB of the Act, and the person has permission to enter and reside in that country. In these circumstances, the person’s BVR would cease because it becomes possible for them to be removed to another country. The other countries not the country to which the person cannot return because the person is a refugee.
… The applicant is the subject of a protection finding. As a result, there is no legal obligation to remove him from Australia unless a decision is made under s.197D of the Act that a protection finding would no longer be made, or if a foreign country that is a party to 1/3 country reception arrangement has given him permission to enter and remain in that country and a protection finding is not made in respect of that country: s.76AAAof the Act”.
The Respondent’s representative in post hearing submissions to the Tribunal states that the Applicant’s submissions concerning the legal consequences of the decision, namely that a protection finding would no longer be made with respect to the Applicant or that a foreign country that is party to a third country reception arrangement who has given the Applicant permission to enter and remain in that country, are speculative considerations. They are described as “impermissibly premised on speculation about future executive actions which include the exercise of non-compellable powers by the Minister to make a decision under s.197D that a protection finding would no longer be made, giving a removal pathway direction and imposing criminal sanctions for non-compliance with the removal direction”.
The submission goes on to state that “the Minister considers there is no real prospect that it will be practicable to remove the Applicant from Australia in the reasonably foreseeable future on the basis that section 199D(1) of the Act, imposes restrictions on giving removal pathway directions to non-citizens who are subject to a protection finding, and s.199D(3) imposes restrictions on giving removal pathway directions to non-citizens who hold a Bridging (Removal Pending) subclass 070 visa (BVR) with monitoring conditions (as in the case of the Applicant).
The Tribunal received a response from the Applicant’s representative to the Respondent’s post-hearing submission on 19 December 2024 which the Tribunal has duly considered. The thrust of the submission is “that the Tribunal would consider the fact that it was a permanent protection visa which was cancelled and not consider that the submission by the Respondent be given the weight sought by the Respondent-that somehow the cancellation of a permanent visa could be mitigated by the fact that he would remain in the community on a temporary visa. The evidence from the Applicant and his family was that to be left in such limbo would be untenable to them all and that, as Australian citizens, intolerable especially since the threat would be constant and interminable, given the passage of the Migration Amendment (Removals and Other Measures) Bill 2024 and the Migration Amendment Bill 2024, which were both given Royal Assent on 4 December 2024”.
The submission notes that the Respondent’s submission “has failed to address the fact that the legislation, as passed, allows for the revisiting of protection obligations to include visa holders covered by the definition of “removal pathway non-citizen”.
The submission posits that “if the Applicant’s permanent protection visa is not restored/the decision is not revoked, the legislation, as passed, allows for the Applicant to be removed to another country-other than that/those identified as countries against which the Applicant is owed protection obligations-s 766AAA (sic) and the amendments to section 197C and 197D”.
The Tribunal notes that the Applicant was found to be owed protection obligations by Australia in 2000 and was granted permanent residence on this basis. He has resided in Australia for 27 years and been in a relationship with his Australian citizen de facto for 24 years and has two Australian citizen adult children of that relationship. The Applicant prior to the 4 December 2024 amendments to the Migration Act had certainty that in the event of the revocation of the cancellation, his ongoing permanent residence as a consequence of him being found to be a refugee, would be maintained.
The effect of the 4 December 2024 changes to the Migration Act means that in the event that the Applicant’s visa cancellation is not revoked that his permanent residence predicated on him being found to be owed protection obligations will be in a state of flux and becomes uncertain and tenuous. The Tribunal acknowledges that there is a predicative element in how this will play out, however it is beyond dispute that the prospective legal consequences of these changes now mean that the Minister may at any time make a decision under s.197D that a protection finding with respect to the Applicant would no longer be made. The Minister can also impose a removal pathway direction if there is a third country that has given the Applicant permission to enter and remain in that country and a protection finding is not made in respect of that country. Furthermore, that in the event that the Applicant objects to or fails to comply with the removal pathway the Act empowers the imposition of criminal sanctions upon the Applicant. These legal consequences, irrespective of them being speculative and based on an exercise of executive power, are a reality for the Applicant that were not applicable prior to 4 December 2024. The Tribunal finds on this basis that they are a legal consequence attributable to the December 4 2024 amendments and that they directly affect the substantive legal rights of the Applicant.
The uncertainty and predictive element that can be attributed to these changes will also have an adverse impact on the Applicant’s de facto wife and his two adult children as the Applicant is seen by his family to be an integral part of the family unit. For reasons discussed the Applicant has also been a positive influence on his daughter and has assisted in stabilising her fragile mental health by his presence in her life after an extended absence due to his incarceration.
The Tribunal has had regard to the definition of ‘legal consequence’ in which states it is “the result of an action that directly or indirectly affects substantive legal rights or obligations”.
These ‘other considerations’ when cumulatively considered lend weight to the revocation of the cancellation of the Applicants visa.
(b) Extent of impediments if removed
If the Applicant is removed from Australia the following impediments may come into play. The Applicant could be removed from his Australian citizen partner and his two Australian citizen children. The Applicant could be potentially removed to a third country and dependence on the economic and social circumstances of that country may act as an impediment to the Applicant in re-establishing his life and in his ability to create economic stability going forward and to maintain interaction with his de facto wife and adult children.
(c) Impact on Australian business interests
The evidence before the Tribunal indicates the Applicant acquired skills as a painter/decorator during the course of his working life in Australia. The Applicant initially obtained this experience whilst an employee but branched out on his own creating a business that at its height employed 7-8 painters to assist with the work of the business. The evidence indicates that the Applicant has been given work since his release from detention by Mr Michael Barutas as a full-time painter. Mr Barutas advised that obtaining employees with the skill set of the Applicant in South Australia has been difficult and if he was to lose the Applicant to his business it would have an adverse impact on the business.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason pursuant to Direction 110 to revoke the cancellation.
Having regard to the evidence before it the Tribunal finds that the Applicant does not pass the character test.
In considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs against the revocation of the cancellation of the Applicant’s visa, although this consideration is not of itself determinative.
(b)Primary Consideration 2 is not relevant and hence no weight is given to this consideration.
(c)Primary Consideration 3 weighs strongly in favour of the revocation of the cancellation of the Applicant’s visa.
(d)Primary Consideration 4 is given neutral weight with respect to the revocation of the cancellation of the Applicant’s visa.
(e)Primary Consideration 5 weighs against the revocation of the cancellation of the Applicant’s visa.
(f)To the extent that they are relevant, the Other Considerations weigh in favour of the revocation of the cancellation of the Applicant’s visa.
For the stated reasons the Tribunal gives some weight to Primary Consideration 1 and the protection of the Australian community with respect to the cancellation of the Applicant’s visa. No weight is apportioned to Primary Consideration 2 as it is not relevant. Strong weight is given to Primary Consideration 3 with respect to the revocation of the Applicant’s visa. Neutral weight is given to Primary Consideration 4. Primary Consideration 5 is given weight with respect to the cancellation of the Applicant’s visa due to the serious nature of the October 2021 offending. The Tribunal gives weight to other considerations with respect to the revocation of the Applicant’s visa. Cumulatively considering the Primary Considerations and the Other Considerations the Tribunal finds, in what it considers to be a finely balanced decision, that the cancellation of the Applicant’s visa should be revoked.
The Tribunal has given careful consideration to all of the Primary Considerations and those of the Primary Considerations that are given primacy and the weight that should be apportioned to these considerations. The Tribunal has also given careful consideration to the Other Considerations. The Tribunal finds that having regard to the totality of the evidence and with respect to those considerations, that the cancellation of the Applciant’s subclass 866 visa should be revoked.
Accordingly, the Tribunal is satisfied that the cancellation of the Applicant’s visa should be revoked.
DECISION
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked

I certify that the preceding 362 (three hundred and sixty-two) paragraphs are a true copy of the reasons for the decision herein of General Member Cipolla

............................[Sgnd]...................................
Associate

Date(s) of hearing: 12 and 13 December 2024

Date final submissions received: 19 December 2024

Solicitors for the Applicant: M. Le, Marion Le Consultancy

Solicitors for the Respondent: M. Pappas, Australian Government Solicitor

Date(s) of hearing:	12 and 13 December 2024
Date final submissions received:	19 December 2024
Solicitors for the Applicant:	M. Le, Marion Le Consultancy
Solicitors for the Respondent:	M. Pappas, Australian Government Solicitor